A Report of the Register of Copyrights · January 2006

Report on Orphan Works

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Library of Congress

U. S. Copyright Office

101 Independence Avenue SE

Washington, DC 20559-6000

Report on Orphan Works

A Report of the Register of Copyrights · January 2006

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The Register of Copyrights of the United States of America

United States Copyright Office • 101 Independence Avenue SE • Washington, DC 20559-6000 • (202) 707-8350

January 23, 2006

Dear Chairman Hatch and Senator Leahy:

Thank you for your request of the Copyright Office to study of the issue of "orphan

works" – copyrighted works for which the owner cannot be located. I am pleased to present our

"Report on Orphan Works" in response to your request.

The response from the public to this study was extraordinary. We received over 850

written comments, most of which were filed by individuals who have concerns about the use of orphan

works. As you know, the roundtable discussions we held in Washington, D.C. and California were

well-attended, and the participants engaged in thoughtful and productive discussion of the many

complex issues involved in this matter. Indeed, throughout the process the participants have addressed

the issues forthrightly, with helpful dialogue and suggestions as to how this problem should be solved.

The Report contains a specific legislative recommendation along with a discussion of

our thinking behind the recommendation and the various issues involved. We look forward to working

with you and your staffs should you consider legislation to address this issue.

Please let me know if you have any questions. I would be happy to discuss the Report

with you or your staff.

Respectfully,

Marybeth Peters

Register of Copyrights

Enclosure

The Honorable Orrin G. Hatch

Chairman

Subcommittee on Intellectual Property

Committee on the Judiciary

104 Hart Office Building

Washington, DC 20510

The Honorable Patrick Leahy

433 Russell Senate Office Building

United States Senate

Washington, DC 20510

ORRIN G. HATCH

United States Senator

PATRICK LEAHY

United States Senator

United States Senate

WASHINGTON, DC 20510

January 5, 2005

Ms. Marybeth Peters, Register of Copyrights

James Madison Memorial Building

101 Independence Avenue SE

Room 403

Washington, DC 20540

Dear Ms. Peters.

In Eldred v. Ashcroft, the Supreme Court considered the Copyright Term Extension Act

of 1998, and then reaffirmed Congress's broad power under the Copyright Clause of the

Constitution to determine the appropriate term of copyright protection and to extend the

term of existing works. That case, both before and after its decision, created considerable

controversy. A principal concern is that the current Copyright Act might be creating a

class of "orphan works" — works for which no copyright owner can be found, and thus for

which permission to use or adapt these works cannot be obtained.

We have heard that this situation places an unnecessary burden on those who wish to use

orphan works: They cannot reduce the risk that their use of the work might result in

copyright infringement, and therefore would likely choose not to use the work. This

would be unfortunate and inconsistent with the purpose of the Copyright Act, because in

such cases it would seem that although no one objects to the use, the public nevertheless

is deprived of access to that work.

We would like the Copyright Office to undertake a review of this orphan works issue,

and, based on that review, develop policy options and legislative recommendations for

the Committee on the Judiciary. We would ask that the Office report to the Committee

its findings durin g the first year of the 109th Congress. and would suggest that soliciting

written comments from interested parties would be an appropriate starting point for this

review.

Thank you for your assistance in this matter.

Sincerely,

LAMAR SMITH COMMITTEE ON THE JUDICIARY

21st District, Texas

Chairman, Subcommittee on Courts, THE INTERNET AND INTELLECTUAL PROPERTY

,

JOHN W. LAMPMANN SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

CHIEF OF STAFF

Rayburn House Office Building RAYBURN HOUSE OFFICE BUILDING COMMITTEE ON SCIENCE

ASHINGTON, DC 20515-4321 SUBCOMMITTEE ON SPACE AND AERONAUTIC

(202) 225-4235 Congress of the United States SUBCOMMITTEE ON RESEARCH FAX (202) 225-8628

http://lamarsmith.house.gov SELECT COMMITTEE ON 

HOMELAND SECURITY

SUBCOMMITTEE ON CYBERSECURITY, SCIENCE

AND RESEARCH & DEVELOPMENT

January 7, 2005 SUBCOMMITTEE ON INFRASTRUCTURE AND

BORDER SECURITY

SUBCOMMITTEE ON INTELLIGENCE AND

COUNTERTERRORISM

Marybeth Peters

Register of Copyrights

Library of Congress

Washington, DC 20540

Dear Register Peters,

Several groups have expressed interest in the Copyright Office issuing a notice of

inquiry surrounding the use of older copyrighted works whose owners cannot be located. I

write to support such an undertaking by your office.

As established by Section 104 of the Sonny Bono Copyright Term Extension Act of

1998, existing copyright law creates a limitation on exclusive rights for reproductions by

libraries and archives of works during the last 20 years of any term of copyright of a

published work. Some are concerned that this provision does not ensure that older works

are commercialized or made available to the public via libraries and archives to the

greatest extent possible.

I note that other countries have created mechanisms to address both the

commercialization of works with unlocatable copyright owners and the accessibility issue.

I encourage you to consult with all interested parties in determining the impact of existing

law as well as identifying the interest and possible need for any updates to existing law.

Please keep me updated as your effort proceeds.

Sincerely,

Lamar Smith

Member of Congress

LS/cg

REPLY TO:

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RANKING MEMBER. SUBCOMMITTEE ON HOUSE OF REPRESENTATIVES 10200 SEPULVEDA BLVD.

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STANDARDS OF OFFICIAL (8181 764-1206

CONDUCT

RANKING MEMBER HOWARD L. BERMAN

January 10, 2005

The Honorable Marybeth Peters

Register of Copyrights

Library of Congress

Washington, DC 20540

Dear Register Peters:

I understand that the Copyright Office intends to issue a notice of inquiry

regarding the use of so-called "orphan" works, or copyrighted works the owners of which

cannot be located. I support this worthwhile undertaking.

The "orphan" status of many works significantly impedes the ability of both

commercial and non-commercial actors to utilize those works. Further, orphan works are

at significant risk of disappearing before they can enter and enrich the public domain.

I recently introduced H.R. 24, along with Reps. Conyers and Lofgren, in an effort

to address the problem of orphan works, but recognize that H.R. 24 constitutes only a

partial solution. Thus, I am wholly supportive of your effort to explore farther

mechanisms for dealing with orphan works. Within that effort, I encourage you to

explore the viability of creating an accurate, updated, and electronically searchable

database of copyright ownership. I also encourage you to consult with all interested

parties in soliciting ideas for addressing the orphan work issue, and in assessing the

impact of potential solutions.

I look forward to seeing the results of this project.

Sincerely,

HOWARD L. BERMAN

Member of Congress

UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

ACKNOWLEDGMENTS 

This Report is the product of several dedicated staff members of the U.S. Copyright 

Office. Jule Sigall, Associate Register for Policy and International Affairs, managed the study 

and was the principal drafter of the Report. Oliver Metzger and Matt Skelton, Attorney-Advisors 

in the Office of Policy and International Affairs, along with Rob Kasunic, a Principal Legal 

Advisor in the Office of General Counsel, composed the team that performed the research and 

analysis for the study, and drafted many sections of the Report. David Carson, General Counsel 

of the Copyright Office, provided wise counsel and sound advice throughout the process. Mary 

Rasenberger, Policy Advisor for Special Programs, provided research and analysis in the early 

stages of this project. Todd Schnitzer, Sharmili Hazra and Chris Stillabower, legal interns in the 

Office of Policy and International Affairs, all provided valuable research assistance to the 

project. 

Jill Pelkola led the administrative support for the project by receiving and processing the 

over 850 comments from the public and handling logistics for the roundtable discussions. Ed 

Rogers and George Thuronyi provided valuable assistance in building the orphan works web 

page, including making the written comments available to the public within days of their receipt 

in the Office. Helen Hester-Ossa, Teresa McCall and Chuck Gibbons provided excellent 

assistance in printing and publishing the Report. Denise Prince, Sandy Jones and Cecily 

Patterson also provided administrative support for the study. 

I must provide a special thanks to Peter Menell, Robert Barr and David Grady at the 

Berkeley Center for Law and Technology of the University of California – Berkeley, Boalt Hall 

School of Law, for arranging to host the California roundtable, and to the staff of the 

Subcommittee on Courts, the Internet and Intellectual Property of the House Judiciary 

Committee, particularly Joe Keeley, for arranging to host the Washington roundtable discussion. 

Marybeth Peters

Register of Copyrights 

UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

TABLE OF CONTENTS

I. EXECUTIVE SUMMARY...........................................................................................................................1

A. INTRODUCTION AND BACKGROUND .................................................................................................................1

B. DESCRIPTION OF ORPHAN WORKS SITUATIONS ...............................................................................................2

C. LEGAL BACKGROUND ......................................................................................................................................3

D. DESCRIPTION OF PROPOSED SOLUTIONS ..........................................................................................................5

E. CONCLUSIONS AND RECOMMENDATIONS.........................................................................................................7

1. The Reasonably Diligent Search Requirement...........................................................................................8

2. The Attribution Requirement....................................................................................................................10

3. Other Alternatives Considered .................................................................................................................11

4. Limitation on Remedies............................................................................................................................11

a. Monetary Relief.................................................................................................................................................... 12

b. Injunctive Relief................................................................................................................................................... 13

5. Administrative Provisions ........................................................................................................................14

6. International Context................................................................................................................................14

7. Application to Types of Uses ...................................................................................................................14

II. INTRODUCTION AND BACKGROUND ...............................................................................................15

A. THE ORPHAN WORKS ISSUE...........................................................................................................................15

B. THE ORPHAN WORKS STUDY.........................................................................................................................17

III. DESCRIPTION OF ORPHAN WORK SITUATIONS...........................................................................21

A. INTRODUCTION ..............................................................................................................................................21

B. OBSTACLES TO IDENTIFYING AND LOCATING COPYRIGHT OWNERS ..............................................................23

1. Inadequate Information on the Work Itself...............................................................................................23

2. Changes of Ownership or in the Circumstances of the Owner.................................................................26

a. Changes of Ownership ......................................................................................................................................... 27

b. Changes in the Circumstances of the Owner........................................................................................................ 28

3. Limitations of Existing Information Resources........................................................................................29

a. Copyright Office Resources ................................................................................................................................. 29

b. Third-Party Information Resources...................................................................................................................... 30

c. Specific Limitations.............................................................................................................................................. 31

4. Difficulties Researching Copyright Information ......................................................................................32

5. Problems Outside the Scope of the Study.................................................................................................34

a. Copyright Owner Known, But Permission Not Obtained..................................................................................... 34

b. Problems Determining Copyright Status.............................................................................................................. 34

c. Problems Related to Pre-1972 Sound Recordings................................................................................................ 35

C. CATEGORIES OF PROPOSED USES ...................................................................................................................36

1. Uses by Subsequent Creators ...................................................................................................................36

2. Large-Scale Access Uses..........................................................................................................................37

3. Enthusiast Uses.........................................................................................................................................38

4. Private Uses..............................................................................................................................................39

IV. LEGAL BACKGROUND...........................................................................................................................41

A. HISTORICAL FACTORS THAT AFFECT THE ORPHAN WORKS PROBLEM...........................................................41

B. PROVISIONS IN U.S. COPYRIGHT LAW THAT RELATE TO ORPHAN WORKS ....................................................44

1. Section 108(h) ..........................................................................................................................................45

2. Section 115(b) ..........................................................................................................................................47

3. Section 504(c)(2) Limitation on Damages................................................................................................49

4. Sections 203, 304(c), and 304(d)..............................................................................................................50

C. OTHER RELEVANT LEGAL CONSIDERATIONS.................................................................................................52

1. Section 102(b) -- The Idea/Expression Dichotomy ..................................................................................53

2. Section 107 -- Fair Use.............................................................................................................................55

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

3. Other Exemptions.....................................................................................................................................56

4. Determining the Copyright Status of the Work ........................................................................................57

5. Substitutes for the Work...........................................................................................................................58

D. INTERNATIONAL CONTEXT.............................................................................................................................59

1. Formalities................................................................................................................................................60

2. The “Three-Step Test”..............................................................................................................................61

3. Berne Provisions Related to Remedies.....................................................................................................65

4. TRIPS Provisions Related to Remedies....................................................................................................66

5. WIPO Internet Treaties Provisions Related to Remedies.........................................................................67

V. DESCRIPTION OF PROPOSED SOLUTIONS......................................................................................69

A. EXISTING SOLUTIONS.....................................................................................................................................69

1. Statutes and Regulations...........................................................................................................................69

B. NON-LEGISLATIVE SOLUTIONS ......................................................................................................................70

C. LEGISLATIVE SOLUTION: LIMITATION ON REMEDIES.....................................................................................71

1. Criteria for Designation of a Work as Orphaned......................................................................................71

a. The Requirement of a Search for the Owner ........................................................................................................ 71

i. The Role of Registries..................................................................................................................................... 73

ii. The Standard of Reasonable Search ................................................................................................................ 77

b. Limitations on Works, Users, and Uses................................................................................................................ 79

i. Limitations on Categories of Works................................................................................................................ 79

ii. Limitations on Categories of Users................................................................................................................. 81

iii. Limitations on Categories of Uses .................................................................................................................. 82

c. Approval by an Authorized Body (e.g., the Copyright Office)............................................................................. 82

2. Consequences of Designation...................................................................................................................83

a. User Fees.............................................................................................................................................................. 84

b. Time Limits.......................................................................................................................................................... 86

c. Exclusive vs. Non-Exclusive Licenses................................................................................................................. 86

3. When an Owner Appears..........................................................................................................................86

4. TRIPS Article 13 ......................................................................................................................................88

5. Moral Rights.............................................................................................................................................89

D. OTHER LEGISLATIVE SOLUTIONS...................................................................................................................89

VI. CONCLUSIONS AND RECOMMENDATIONS ....................................................................................92

A. CONCLUSIONS................................................................................................................................................92

B. RECOMMENDATIONS......................................................................................................................................93

1. Background ..............................................................................................................................................93

2. Specific Provisions...................................................................................................................................95

a. The Requirement of Reasonably Diligent Search................................................................................................. 96

i. Defining Reasonably Diligent Search ............................................................................................................. 98

ii. Developing Reasonable Search Criteria ........................................................................................................ 108

b. The Requirement of Attribution ......................................................................................................................... 110

c. Other Alternatives Considered ........................................................................................................................... 112

d. The Limitation on Remedies .............................................................................................................................. 115

i. Limitations on Monetary Relief .................................................................................................................... 115

ii. Limitations on Injunctive Relief.................................................................................................................... 119

e. Other Provisions................................................................................................................................................. 121

f. International Considerations............................................................................................................................... 121

3. Applying the Recommendation to Orphan Work Uses ..........................................................................122

a. The Large-Scale Access User............................................................................................................................. 122

b. Subsequent Creator............................................................................................................................................. 124

c. Enthusiast User................................................................................................................................................... 125

d. Private User........................................................................................................................................................ 125

C. RECOMMENDED STATUTORY LANGUAGE ....................................................................................................127

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

I. Executive Summary 

A. Introduction and Background 

This Report addresses the issue of “orphan works,” 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. Even where the user has made a reasonably diligent effort to find the 

owner, if the owner is not found, the user faces uncertainty – she cannot determine 

whether or under what conditions the owner would permit use. Where the proposed use 

goes beyond an exemption or limitation to copyright, the user cannot reduce the risk of 

copyright liability for such use, because there is always a possibility, however remote, 

that a copyright owner could bring an infringement action after that use has begun. 

Concerns have been raised that in such a situation, a productive and beneficial use 

of the work is forestalled – not because the copyright owner has asserted his exclusive 

rights in the work, or because the user and owner cannot agree on the terms of a license – 

but merely because the user cannot locate the owner. Many users of copyrighted works 

have indicated that the risk of liability for copyright infringement, however remote, is 

enough to prompt them not to make use of the work. Such an outcome is not in the 

public interest, particularly where the copyright owner is not locatable because he no 

longer exists or otherwise does not care to restrain the use of his work. 

The Copyright Office has long shared these concerns, and has considered the 

issue of orphan works to be worthy of further study. The Office was pleased that on 

January 5, 2005 Senators Orrin Hatch and Patrick Leahy asked the Register of Copyrights 

to study the orphan works issue in detail, and to provide a report with her 

recommendations. Also in January 2005, Representatives Lamar Smith and Howard 

Berman expressed interest in the issue and supported the undertaking of this study. 

After this request, in January 2005, the Office issued a Notice of Inquiry initiating 

this study. We received over 850 written initial and reply comments from the public, and 

held three days of roundtable discussions in late July in Washington, D.C. and Berkeley, 

California. The Office subsequently met informally with various organizations 

separately, in a effort to explore more specific issues raised in the comments and 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

Page 2 

roundtables, and inviting them to further express their individual concerns. This Report 

is the culmination of those efforts. 

B. Description of Orphan Works Situations 

Section III of the Report catalogs and organizes the various situations described in 

the comments as “orphan work” situations. The written initial and reply comments, most 

of which were authored by individuals, described an enormous variety of problems and 

proposed uses. It is difficult, however, to quantify the extent and scope of the orphan 

works problems from these comments, for several reasons. First, about 40% of the 

comments do not identify an instance in which someone could not locate a copyright 

owner, and another large portion identified situations that were clearly not orphan work 

situations. Still, about 50% of the comments identified a situation that could fairly be 

categorized as an orphan works situation, and even more instances were collected in 

comments filed by trade associations and other groups. Thus, there is good evidence that 

the orphan works problem is real and warrants attention, and none of the commenters 

made any serious argument questioning that conclusion. 

The Report describes the most common obstacles to successfully identifying and 

locating the copyright owner, such as (1) inadequate identifying information on a copy of 

the work itself; (2) inadequate information about copyright ownership because of a 

change of ownership or a change in the circumstances of the owner; (3) limitations of 

existing copyright ownership information sources; and (4) difficulties researching 

copyright information.1

 It then describes other situations raised by commenters that were 

alleged to be “orphan work” situations but upon closer inspection are outside the scope of 

this inquiry. These include situations where the user contacted the owner, but did not 

receive permission to use the work, either because the owner did not respond to the 

request, refused the request, or required a license fee that the user felt was too high. 

Other such problems include general difficulties determining the status of copyright 

protection for a given work, and problems related to the legal protection accorded pre1972 sound recordings.2

 

 1 See infra pages 23-34. 

2 See infra pages 34-36. 
UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

Finally, Section III catalogs the proposed uses that the commenters indicated were 

most affected by the orphan works situations. In our view these uses fall into one of four 

general categories: (1) uses by subsequent creators who add some degree of their own 

expression to existing works to create a derivative work; (2) large-scale “access” uses

where users primarily wish to bring large quantities of works to the public, usually via the 

Internet; (3) “enthusiast” or hobbyist uses, which usually involve specialized or niche 

works, and also appear frequently to involve posting works on the Internet; and (4) 

private uses among a limited number of people.3

C. Legal Background 

Section IV of the Report provides the legal backdrop for consideration of the 

orphan works issue.4

 First, it sets out the historical factors that affect the orphan works 

problem by describing how the issue is, in some respects, a result of the omnibus revision 

to the Copyright Act in 1976. Specifically, the 1976 Act made obtaining and maintaining 

copyright protection substantially easier than the 1909 Act. Copyrighted works are 

protected the moment they are fixed in a tangible medium of expression, and do not need 

to be registered with the Copyright Office. Also, the 1976 Act changed the basic term of 

copyright from a term of fixed years from publication to a term of life of the author plus 

50 (now 70) years. In so doing, the requirement that a copyright owner file a renewal 

registration in the 28th year of the term of copyright was essentially eliminated. 

These changes were important steps toward the United States’ assumption of a 

more prominent role in the international copyright community, specifically through 

accession to the Berne Convention, which prohibits formalities like registration and 

renewal as a condition on the enjoyment and exercise of copyright. Moreover, there was 

substantial evidence presented during consideration of the 1976 Act that the formalities 

such as renewal and notice, when combined with drastic penalties like forfeiture of 

copyright, served as a “trap for the unwary” and caused the loss of many valuable 

copyrights. These changes, however, exacerbate the orphan works issue, in that a user 

generally must assume that a work he wishes to use is subject to copyright protection, and 

 3 See infra pages 36-40. 

4 See infra pages 41-68. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

often cannot confirm whether a work has fallen into the public domain by consulting the 

renewal registration records of the Copyright Office. 

Section IV then goes on to describe existing provisions of copyright law that 

might address the orphan works situation in certain circumstances. While U.S. copyright 

law does not contain an omnibus provision addressing all orphan works as such, it does 

contain a few provisions that permit certain users to make certain uses of certain classes 

of orphan works, and other provisions that reduce the risk in using an orphan work. 

These provisions include section 108(h), section 115(b), section 504(c)(2), and the 

termination provisions (sections 203, 304(c), and 304(d)). These existing sections 

provide models that may be useful in the development of an omnibus orphan works 

provision. 

This discussion demonstrates that the current Copyright Act does not contain 

provision designed to address the orphan works situation that is the subject of this study. 

While some provisions, like section 108(h), might address the question for some users in 

certain situations, in general a user faced with an orphan works situation will not find a 

specific section or other provision of the Act on which he might rely to make use of the 

work. 

Nevertheless, we believe that the focus on developing legislative text to address 

orphan works should not obscure the fact that the Copyright Act and the marketplace for 

copyrighted works provide several alternatives to a user who is frustrated by the orphan 

works situation. Indeed, assessing whether the situations described to use in the 

comments were true “orphan works” situations was difficult, in part because there is 

often more than meets the eye in a circumstance presented as an “orphan works” 

problem. 

For purposes of developing a legislative solution we have defined the “orphan 

works” situation to be one where the use goes beyond any limitation or exemption to 

copyright, such as fair use. However, in practice, most cases will not be so neatly 

defined, and a user may have a real choice among several alternatives that allow her to go 

forward with her project: making noninfringing use of the work, such as by copying only 

elements not covered by copyright; making fair use; seeking a substitute work for which 

she has permission to use; or a combination of these alternatives. Indeed, evidence 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

presented to us indicates that users in the orphan works situation make exactly these types 

of choices. Section IV describes some of those alternatives and how they might be 

applicable to different scenarios described in the comments. 

Finally, Section IV sets out the international law context for consideration of an 

orphan works solution. Specifically, it describes the obligations that the various 

international copyright treaties impose on the United States with respect to imposition of 

formalities to copyright, limitations and exceptions to copyright and copyright remedies. 

D. Description of Proposed Solutions 

Numerous comments received in this proceeding proposed various solutions to 

the orphan works problem, and Section V of the Report catalogs and describes them. 

These solutions can be grouped into four categories: 

• Solutions that already exist under current law and practice. These 

were usually noted only in passing; commenters (even 

commenters opposed to any orphan works provision) did not take 

the position that the existing law is sufficient to solve the orphan 

works problem.

5

• Non-legislative solutions. An example of a solution in this 

category is a proposal for improved databases for locating owners 

of works. These solutions were also usually noted only in passing, 

and were not advanced as sufficient to fix the problem.

6

• Legislative solutions that involve a limitation on remedies when a 

user uses an orphan work. The most substantive comments fell 

into this category, and most of the comments by professional 

organizations or academics fell into this category.7

• Other legislative solutions. Examples of proposed solutions in this 

category are deeming all orphaned works to be in the public 

domain, or changing the tax or bankruptcy codes to reduce the 

factors that cause orphan works to come into existence in the first 

place. 8

As explained in Section V, most of the comments focused on various aspects of 

the third category, legislative proposals involving a limitation on remedies. Almost every 

commenter who advocated a limitation-on-remedies system agreed that a fundamental 

 5 See infra page 69. 

6 See infra page 70. 

7 See infra pages 71-89 

8 See infra page 89

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

requirement for designation of a work as orphaned is that the prospective user have 

conducted a search for the owner of the work, and that the search results in the owner not 

being located. The commenters differed in the types of searches they would consider 

adequate. 

Many commenters were in favor of determining whether a search was reasonable 

on an “ad hoc” or case-by-case basis, whereby each search is evaluated according to its 

circumstances. This approach was offered as having the advantage of flexibility to cover 

the wide variety of situations that depend on the type of work and type of use involved. 

Several others were in favor of a “formal” approach, whereby the copyright owner is 

required to maintain his contact information in a centralized location, and a user need 

only search those centralized locations to perform a reasonable search. That approach 

was offered as being more certain than the “ad hoc” approach. 

The commenters also discussed the role that registries would play in an orphan 

works system. Some proposed a mandatory registry for owner information, which was 

opposed by several commenters as reinstating the problematic features of the pre-1976 

copyright law, and might violate international obligations related to formalities. Many 

commenters expressed support for voluntary registries of owner information that could be 

consulted by users in performing their reasonable searches. Some copyright owners 

expressed concern about even voluntary registries as not offering much efficiency in 

certain cases, such as photographs. Some commenters proposed that user registries be 

established in which a user would file a notice that he intends to use a work for which he 

cannot locate an owner. Both voluntary and mandatory user registries were proposed. 

Concerns were raised as to whether user registries were unnecessarily burdensome on 

owners, who might have to consult the registry frequently to monitor use of their 

copyrights. 

Other issues discussed by the commenters and described in Section V include 

whether the orphan works system should be limited based on the age of the work, on 

whether the work is unpublished, and on whether the work is of foreign origin. Many 

commenters expressed the view that none of these characteristics should disqualify any 

particular work; rather, these aspects of a work should be considered in the determination 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

of whether the search for the owner was reasonable. Some commenters also proposed 

that the use of orphan works be limited to non-profit educational or cultural institutions. 

Once a work has been designated as an orphan work, several comments addressed 

whether the user would have to pay any fees for the use of the work. A common 

suggestion was that the user be obligated to pay a reasonable license fee if the copyright 

owner surfaced after use began. Others proposed a low fixed statutory fee, such as $100 

per work used, and another suggestion was the actual damages caused by the use with a 

low statutory cap. Some participants favored the use of an escrow that users would pay 

into upon use of the orphan work, with that money distributed to owners if they surfaced. 

If an owner does appear and claim infringement, most commenters agreed that 

some limitation on the remedies for infringement is essential to encouraging the use of 

the work. Most agreed that statutory damages and attorneys fees should not be available, 

because those remedies create the most uncertainty in the minds of users. With respect to 

injunctive relief, many commenters proposed that the orphan work user be permitted to 

continue the use he had been making before the owner surfaced, but that new uses of the 

work remain subject to injunction and full copyright remedies. 

E. Conclusions and Recommendations 

Section VI of the Report contains the Copyright Office’s conclusions and 

recommendations.9

 Our conclusions are: 

• The orphan works problem is real. 

• The orphan works problem is elusive to quantify and describe 

comprehensively.

• Some orphan works situations may be addressed by existing 

copyright law, but many are not.

• Legislation is necessary to provide a meaningful solution to the 

orphan works problem as we know it today.

We recommend that the orphan works issue be addressed by an amendment to the 

Copyright Act’s remedies section. The specific language we recommend is provided at 

the end of this Report.10 

 9 See infra page 92. 

10 See infra page 127.

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

In considering the orphan works issue and potential solutions, the Office has kept 

in mind three overarching and related goals. First, any system to deal with orphan works 

should seek primarily to make it more likely that a user can find the relevant owner in the 

first instance, and negotiate a voluntary agreement over permission and payment, if 

appropriate, for the intended use of the work. Second, where the user cannot identify and 

locate the copyright owner after a reasonably diligent search, then the system should 

permit that specific user to make use of the work, subject to provisions that would resolve 

issues that might arise if the owner surfaces after the use has commenced. In the 

roundtable discussions, there seemed to be a clear consensus that these two goals were 

appropriate objectives in addressing the orphan works issues. Finally, efficiency is 

another overarching consideration we have attempted to reflect, in that we believe our 

proposed orphan works solution is the least burdensome on all the relevant stakeholders, 

such as copyright owners, users and the federal government. 

The proposed amendment follows the core concept that many commenters 

favored as a solution to the orphan works problem: if the user has performed a 

reasonably diligent search for the copyright owner but is unable to locate that owner, then 

that user should enjoy a benefit of limitations on the remedies that a copyright owner 

could obtain against him if the owner showed up at a later date and sued for infringement. 

The recommendation has two main components: 

• the threshold requirements of a reasonably diligent search for the 

copyright owner and attribution to the author and copyright owner; 

and 

• the limitation of remedies that would be available if the user 

proves that he conducted a reasonably diligent search. 

The details of the recommendation are set out in Section VI, followed by a discussion of 

some other proposals that we considered carefully, but ultimately decided not to 

recommend.11

1. The Reasonably Diligent Search Requirement

Subsection (a) sets out the basic qualification the user of the orphan work must 

meet – he must perform a “reasonably diligent search” and have been unable to locate the 

owner of the copyright in the work. Such a search must be completed before the use of 

 11 See infra page 93-122. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

the work that constitutes infringement begins. The user has the burden of proving the 

search that was performed and that it was reasonable, and each user must perform a 

search, although it may be reasonable under the circumstances for one user to rely in part 

on the search efforts of another user. 

Several commenters complained of the situation where a user identifies and 

locates the owner and tries to contact the owner for permission, but receives no response 

from the owner. They suggested that works in these situations should be considered 

orphan works. We have concluded that such a solution is not warranted, as it touches 

upon some fundamental principles of copyright, namely, the right of an author or owner 

to say no to a particular permission request, including the right to ignore permission 

requests. For this reason, once an owner is located, the orphan works provision becomes 

inapplicable. 

The proposal adopts a very general standard for reasonably diligent search that 

will have to be applied on a case-by-case basis, accounting for all of the circumstances of 

the particular use. Such a standard is needed because of the wide variety of works and 

uses identified as being potentially subject to the orphan works issues, from an untitled 

photograph to an old magazine advertisement to an out-of-print novel to an antique 

postcard to an obsolete computer program. It is not possible at this stage to craft a 

standard that can be specific to all or even many of these circumstances. Moreover, the 

resources, techniques and technologies used to investigate the status of a work also differ 

among industry sectors and change over time, making it hard to specify the steps a user 

must take with any particularity. 

Section VI contains a discussion of several factors that commenters identified as 

being relevant to the reasonableness of a search, including: 

• The amount of identifying information on the copy of the work 

itself, such as an author’s name, copyright notice, or title;

• Whether the work had been made available to the public; 

• The age of the work, or the dates on which it was created and made 

available to the public; 

• Whether information about the work can be found in publicly 

available records, such as the Copyright Office records or other 

resources; 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

• Whether the author is still alive, or the corporate copyright owner 

still exists, and whether a record of any transfer of the copyright 

exists and is available to the user; and 

• The nature and extent of the use, such as whether the use is 

commercial or noncommercial, and how prominently the work 

figures into the activity of the user. 

Importantly, our recommendation does not exclude any particular type of work from its 

scope, such as unpublished works or foreign works. Section VI explains why we believe 

that unpublished works should not be excluded from this recommendation, and how the 

unpublished nature of a work might figure into a reasonable search determination. 

Our recommendation permits, and we encourage, interested parties to develop 

guidelines for searches in different industry sectors and for different types of works. 

Most commentators were supportive of voluntary development of such guidelines. When 

asked whether the Copyright Office should have authority to embody guidelines in more 

formal, binding regulations to provide certainty, we were surprised to hear that most user 

groups – whom we thought would desire more certain rules for searches – opposed the 

Copyright Office issuing rules related to search criteria. Based on our desire to maintain 

flexibility in the reasonable search standard and this expressed opposition to formal 

rulemaking, we have not proposed that the orphan works legislation provide the Office 

with any rulemaking authority. 

2. The Attribution Requirement 

We also recommend one other threshold requirement for a user to qualify for the 

orphan works limitations on remedies: throughout the use of the work, the user must 

provide attribution to the author and copyright owner of the work if such attribution is 

possible and as is reasonably appropriate under the circumstances. The idea is that the 

user, in the course of using a work for which he has not received explicit permission, 

should make it as clear as possible to the public that the work is the product of another 

author, and that the copyright in the work is owned by another. While only a handful of 

commenters proposed a requirement along these lines, we found several good reasons to 

support this requirement, described in Section VI, including the notion that attribution is 

critically important to authors, even those who consent to free use of their works. The 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

requirement of attribution should be a flexible rule, and should not be interpreted in a 

strict way to create unnecessarily another obstacle to the use of orphan works. 

3. Other Alternatives Considered 

There were two other mechanisms proposed to help address the orphan works 

issue that we considered but ultimately concluded would not be appropriate to 

recommend at this time. First, as noted above, some commenters suggested that users 

should be required to file with the Copyright Office some public notice that they have 

conducted a reasonable search and intend to use an orphan work. While a centralized 

registry of user certifications or notice of intent to use sounds promising on the surface, 

upon closer examination there are potential pitfalls that outweigh the benefits at this time, 

for reasons that we describe in Section VI. 

The other mechanism proposed by some commenters is a requirement that orphan 

works users pay into an escrow before commencing use. In our view, an escrow 

requirement in an “ad hoc” reasonable search system like we recommend would be 

highly inefficient. Every user would be required to make payment, but in the vast 

majority of cases, no copyright owner would resurface to claim the funds, which means 

the system would not in most cases actually facilitate payments between owners and 

users of orphan works. We are sympathetic to the concerns of individual authors about 

the high cost of litigation and how, in many cases, the individual creator may have little 

practical recourse in obtaining relief through the court system. We believe that 

consideration of new procedures to address this situation, such as establishment of a 

“small claims” or other inexpensive dispute resolution procedure, would be an important 

issue for further study by Congress. 

4. Limitation on Remedies 

If a user meets his burden of demonstrating that he performed a reasonably

diligent search and provided reasonable attribution to the author and copyright owner, 

then the recommended amendment would limit the remedies available in that 

infringement action in two primary ways: First, it would limit monetary relief to only 

reasonable compensation for the use, with an elimination of any monetary relief where 

the use was noncommercial and the user ceases the infringement expeditiously upon

notice. Second, the proposal would limit the ability of the copyright owner to obtain full 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

injunctive relief in cases where the user has transformed the orphan work into a 

derivative work like a motion picture or book, preserving the user’s ability to continue to 

exploit that derivative work. In all other cases, the court would be instructed to minimize 

the harm to the user that an injunction might impose, to protect the user’s interests in 

relying on the orphan works provision in making use of the work. 

a. Monetary Relief 

A vast majority of the commenters in this proceeding agreed that the prospect of a 

large monetary award from an infringement claim, such as an award of statutory damages 

and attorneys’ fees, was a substantial deterrent to users who wanted to make use of an 

orphan work, even where the likelihood of a claim being brought was extremely low. 

Most of the proposals for addressing the orphan works problem called for clear 

limitations on the statutory damages and attorneys’ fees remedies in cases involving 

orphan works. Our recommendation follows this suggestion by limiting the possible 

monetary relief in these cases to only “reasonable compensation,” which is intended to 

represent the amount the user would have paid to the owner had they engaged in 

negotiations before the infringing use commenced. In most cases it would equal a 

reasonable license fee, as that concept is discussed in recent copyright case law. 

While many commenters supported a general remedy like “reasonable 

compensation,” some expressed concern about the impact that any monetary remedy at 

all might have on their ability to go forward and use orphan works. For example, 

museum representatives explained that they would like to use hundreds or even thousands 

of orphan works in their collections, so the potential of even a minimal monetary award 

for each work, would, in their view, be prohibitive. Libraries and archives made similar 

observations, given their desire to make large collections of orphan works accessible. 

In our view, a general standard of reasonable compensation is the right solution to 

this problem, for several reasons. First, with respect to the concern about a chilling effect 

of any monetary remedy, it must be noted that in nearly all cases where a diligent search 

has been performed, the likelihood of a copyright owner resurfacing should be very low, 

so that no claim for compensation is ever made. Second, it should be clear that 

“reasonable compensation” may, in appropriate circumstances, be found to be zero, or a 

royalty-free license, if the comparable transactions in the marketplace support such a 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

finding. Our discussions with museums, universities and libraries indicated that in many 

orphan works situations a low or zero royalty is likely to be the reasonable compensation. 

In addition, to make absolutely sure that the concerns of nonprofit institutions like 

libraries, museums and universities about monetary relief are assuaged, we recommend 

an additional limitation on monetary relief where the user is making a non-commercial 

use of the work and expeditiously ceases the infringement after receiving notice of the 

infringement claim. In that case, there should be no monetary relief at all. Libraries, 

archives and museums indicated that posting material on the Internet was a primary use 

they would like to make of orphan works, and that they would take down any material if 

a copyright owner resurfaced. This additional provision provides certainty about their 

exposure in that circumstance. If the organization wishes to continue making use of the 

work, it would have to pay reasonable compensation for its past use, and, as described 

below, for future use of the work. 

b. Injunctive Relief 

In addition to the limits on monetary relief, several commenters in this proceeding 

suggested that limitations on injunctive relief were needed as well. Most specifically, 

users who would like to create derivative works based on orphan works, most notably 

filmmakers and book publishers, stressed that the fear of an untimely injunction – 

brought just as the book was heading to stores, or just before release of the film – 

provides enough uncertainty that many choose not use the work, even though the 

likelihood of such injunction is small. 

In light of these comments, we recommend that injunctive relief for infringement 

of an orphan work be limited in two ways. First, where the orphan work has been 

incorporated into a derivative work that also includes significant expression of the user, 

then injunctive relief will not be available to stop the use of the derivative work in the 

same manner as it was being made prior to infringement, provided the user pays 

reasonable compensation to the copyright owner. Second, in all other cases, full 

injunctive relief is available, but the court must account for and accommodate any 

reliance interest of the user that might be harmed by an injunction. For example a full 

injunction will still be available where a user simply republishes an orphan work, or posts 

it on the Internet without transformation of the content. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

5. Administrative Provisions 

We also recommend two other administrative provisions. First, a savings clause 

that makes clear that nothing in the new section on orphan works affects rights and 

limitations to copyright elsewhere in the Copyright Act, which is consistent with the 

structural approach of placing the provision in the remedies chapter. Second, we 

recommend that the provision sunset after ten years, which will allow Congress to 

examine whether and how the orphan works provision is working in practice, and 

whether any changes are needed. 

6. International Context 

The Notice of Inquiry asked questions about how any proposed solution to the 

orphan works issue would comport with the United States’ international obligations in the 

various copyright treaties. Our recommendation does not exclude foreign works from its 

scope, so it must comport with the United States’ international copyright obligations. We 

believe that one of the primary advantages of the ad hoc, reasonably diligent search 

approach is that it is fully compliant with international obligations. 

7. Application to Types of Uses 

To further explain how our recommendation would work in practice, Section VI 

takes the four general categories of users described in Section III and describes how the

recommended limitation on remedies would apply in each scenario.12 The Section 

describes how the Large-Scale Access User, Subsequent Creator, Enthusiast User and 

Personal User would proceed under the recommendation. We believe that nearly all 

orphan work situations are encompassed by one of those four categories, so that if our 

recommendation resolves users’ concerns in a satisfactory way, it will likely be a 

comprehensive solution to the orphan works situation. 

 12 See infra pages 122-126. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

II. Introduction and Background 

A. The Orphan Works Issue 

This Report addresses the issue of “orphan works,” 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. In general, the copyright system establishes a marketplace of exclusive 

rights, in which copyright owners can control, subject to limitations and exemptions, the 

exploitation of their work. In the typical situation, a person who wishes to exercise one 

or more of the rights under copyright would seek to find the copyright owner and obtain 

permission for her planned use. If the owner is found and refuses to grant permission, the 

user cannot make such use, unless she curtailed her activity to fall within an exemption or 

limitation to copyright. On the other hand, the owner might grant permission subject to 

certain conditions, such as payment of a license fee. In some cases the owner might 

permit the use without any conditions at all. 

In the situation where the owner cannot be identified and located, however, the 

user faces uncertainty – she cannot determine whether or under what conditions the 

owner would permit use. Where the proposed use goes beyond an exemption or 

limitation to copyright, the user cannot reduce the risk of copyright liability for such use, 

because there is always a possibility, however remote, that a copyright owner could 

appear and bring an infringement action after that use has begun. Concerns have been 

raised that in such situation, a productive and beneficial use of the work is forestalled – 

not because the copyright owner has asserted his exclusive rights in the work, or because 

the user and owner cannot agree on the terms of a license – but merely because the user 

cannot locate the owner. Many users of copyrighted works who have limited resources 

or are particularly risk-averse have indicated that the risk of liability for copyright 

infringement, however remote, is enough to prompt them simply to not make use of the 

work. Such an outcome is not in the public interest, particularly where the copyright 

owner is not locatable because he no longer exists or otherwise does not care to restrain 

the use of his work. 

Concerns about the orphan works issue have been raised in the past. As described 

in Section IV, when the Copyright Act was revised in 1976 to provide automatic 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

protection that subsists immediately upon fixation of a work (without formal 

requirements such as registration or notice), it meant that a user generally must assume 

that a work he wishes to use is subject to copyright protection, even where circumstances 

indicate that the work has no commercial value or no copyright owner who might object 

to its use. During consideration of the 1976 Act, some users pointed out that the longer 

copyright term created by that revision might inhibit scholarly or academic uses of works 

where the copyright owner may no longer be actively exploiting the work 

commercially.13 During consideration of the Sonny Bono Copyright Term Extension Act 

of 199814 (which extended the term of copyright by 20 years), the Copyright Office noted 

problems with unlocatable copyright owners, while some users pointed out that term

extension could exacerbate problems with orphan works.15 The Copyright Office also 

encountered these problems during its study on Copyright and Digital Distance Education 

in 1999, in which the Office reported that when attempting to license educational 

materials, “it can be time-consuming, difficult or even impossible to locate the copyright 

owner.”16 In addition, over the years the Copyright Office has become aware of 

situations where the inability to find a copyright owner has stifled the use of a work. 

 13 Congress summarized these concerns as follows: 

A point that has concerned some educational groups arose from the possibility 

that, since a large majority (now about 85 percent) of all copyrighted works are 

not renewed, a life-plus-50 year term would tie up a substantial body of material

that is probably of no commercial interest, but that would be more readily 

available for scholarly use if free of copyright restrictions. 

H.R. Rep. No. 94-1476, at 136 (1976). 

14 Pub. L. No. 105-298, 112 Stat. 2827 (Oct. 27, 1998). 

15 As Register of Copyrights Marybeth Peters observed:

[F]inding the current owner can be almost impossible. Where the copyright

registration records show that the author is the owner finding a current address 

or the appropriate heir can be extremely difficult. Where the original owner was 

a corporation, the task is somewhat easier but here too there are many 

assignments and occasionally bankruptcies with no clear title to works. 

Copyright Term Extension: Hearing on S. 483 Before the Senate Committee on the Judiciary, 104th Cong.

18-19 (1995) (statement of Marybeth Peters, Register of Copyrights); see also Letter from Larry Urbanski, 

Chairman, American Film Heritage Association, to Senator Strom Thurmond Opposing S. 505 (Mar. 31,

1997), available at http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/letters/AFH.html 

(stating that as much as 75% of motion pictures from the 1920s are no longer clearly owned by anyone) 

16 See U.S. COPYRIGHT OFFICE, REPORT ON COPYRIGHT AND DIGITAL DISTANCE EDUCATION 41-

43 (1999). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

These experiences and concerns have been expressed mostly informally and anecdotally, 

but have also been discussed in recent scholarship as well.17 

B. The Orphan Works Study 

The Copyright Office has long shared these concerns, and has considered the 

issue of orphan works to be worthy of further study. The Office was pleased that on 

January 5, 2005, Senator Orrin Hatch, Chairman of the Subcommittee on Intellectual 

Property of the Senate Judiciary Committee, and Patrick Leahy, ranking member of the

Subcommittee on Intellectual Property and the Senate Judiciary Committee, asked the 

Register of Copyrights to study the orphan works issue in detail, and to provide a report 

with her recommendations. Also in January 2005, Representatives Lamar Smith and 

Howard Berman, the Chairman and Ranking Member, respectively, of the Subcommittee 

on Courts, the Internet and Intellectual Property of the House Judiciary Committee, 

expressed interest in the issue and supported the undertaking of this study. 

Shortly thereafter on January 26, 2005, the Copyright Office issued a Notice of 

Inquiry18 describing the orphan works problem, and inviting the public to submit written 

comments on the problem to the Office during an initial 60-day period, followed by a 45-

day period for reply comments. The Office received an overwhelming response (by 

comparison to past studies), receiving 721 initial comments, and 146 reply comments.19 

Virtually every interest group typically involved in copyright policy debates was 

represented in the comments, as the Office received comments from the following groups 

and organizations: 

• book publishers (e.g., Association of American Publishers); 

• authors (e.g., The Authors Guild, Science Fiction & Fantasy 

Writers of America, Society of Children’s Book Writers and 

Illustrators); 

 17 Analysis of data on trends in copyright registrations and renewals over the last century suggests 

that a large number of works may fall into the category of orphan works. See WILLIAM M. LANDES & 

RICHARD A. POSNER, The Economic Structure of Intellectual Property Law 211-12 (Belknap Press 2003);

see also H.R. Rep. No. 94-1476, at 136 (1976). 

18 70 Fed. Reg. 3739 (Jan. 26, 2005). All Federal Register notices published by the Copyright

Office during this study are included as Appendix A. 

19 Both the initial and reply comments have been posted to the Office’s Orphan Works website at 

http://www.copyright.gov/orphan/. Indexes of the initial and reply comments accepted by the Office are 

included as Appendix B.

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

• libraries and archives (e.g., Carnegie Mellon University 

Libraries, Cornell University Libraries, Library Copyright 

Alliance, Library of Congress, University of Michigan Libraries, 

Society of American Archivists, Stanford University Libraries,

UCLA Film and Television Archive); 

• museums (e.g., The J. Paul Getty Trust, The Metropolitan 

Museum of Art, The Solomon R. Guggenheim Foundation, 

Smithsonian Institution); 

• music publishers (e.g., The Harry Fox Agency); 

• recording artists and musicians (e.g., American Federation of 

Musicians (“AFM”), American Federation of Television and Radio 

Artists (“AFTRA”), Recording Artists Coalition); 

• record companies (e.g., Recording Industry Association of 

America); 

• rights administration organizations (e.g., American Society of 

Composers, Authors and Publishers (“ASCAP”), Broadcast Music, 

Inc. (“BMI”), Creative Commons, Copyright Clearance Center 

(“CCC”)); 

• academic organizations (e.g., American Council of Learned 

Societies, College Art Association, Duke Center for the Study of 

the Public Domain, Glushko-Samuelson Intellectual Property Law 

Clinic, Kernochan Center for Law, Media and Arts, National 

Humanities Alliance); 

• illustrators (e.g., Graphic Artists Guild, Illustrators Partnership of 

America); 

• photographers (e.g., American Society of Media Photographers, 

Professional Photographers of America, Picture Archive Council 

of America); 

• independent filmmakers (e.g., Association of Independent Video 

and Filmmakers, Film Arts Foundation, IFP-New York, National 

Alliance for Media, Arts and Culture, National Video Resources); 

• film studios (e.g., Motion Picture Association of America); 

• software companies (e.g., Entertainment Software Association, 

Microsoft, Software and Information Industry Association); 

• Internet companies and advocacy groups (e.g., Electronic 

Frontier Foundation, Google, NetCoalition, Public Knowledge); 

and 

• numerous individuals. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

After the written comments phase, the Office published a Notice of Public 

Roundtables20 on orphan works. The Office hosted two days of roundtables in 

Washington, D.C. on July 26 and 27, 2005, and an additional day of roundtables in 

Berkeley, California,21 on August 2, 2005.22 In total, 33 representatives of 37 

organizations participated in the roundtables in Washington, D.C., while 21 

representatives of 26 organizations participated in Berkeley, California.23 A wide array 

of organizations and individuals participated in these roundtables, including: 

• book publishers (e.g., Association of American Publishers, 

Holtzbrinck Publishers, Houghton Mifflin Company); 

• authors (e.g., The Authors Guild, Science Fiction & Fantasy 

Writers of America); 

• libraries and archives (e.g., Library Copyright Alliance, Stanford 

University Libraries, University of California – Los Angeles 

Libraries, University of California – San Diego Libraries); 

• museums (e.g., The J. Paul Getty Trust); 

• recording artists and musicians (e.g., American Federation of 

Television and Radio Artists (“AFTRA”), Recording Artists 

Coalition); 

• record companies (e.g., Recording Industry Association of 

America); 

• rights administration organizations (e.g., Creative Commons, 

Copyright Clearance Center (“CCC”)); 

• academic and scholarly societies (e.g., College Art Association); 

• illustrators (e.g., Graphic Artists Guild, Illustrators Partnership of 

America); 

• photographers (e.g., American Society of Media Photographers, 

Professional Photographers of America, Picture Archive Council 

of America); 

 20 70 Fed. Reg. 39,341 (July 7, 2005). 

21 The Office would like to thank the University of California–Berkeley, Boalt Hall School of 

Law, and the Berkeley Center for Law and Technology for hosting the roundtable in Berkeley, California. 

22 Transcripts for the roundtables (and sound recordings of the Berkeley roundtables) have been

posted to the Office’s Orphan Works website. 

23 A list of roundtable participants and their organizations is included as Appendix C. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

• independent filmmakers (e.g., Association of Independent Video 

and Filmmakers, Film Independent, National Video Resources, 

Film Arts Foundation); 

• film studios (e.g., 20th Century Fox, Motion Picture Association 

of America); 

• software companies (e.g., Software and Information Industry 

Association); and 

• Internet companies and advocacy groups (e.g., Internet Archive, 

Google, NetCoalition, Public Knowledge). 

The Office subsequently met informally with various organizations separately, in 

an effort to explore more specific issues raised in the comments and roundtables, and 

inviting these groups to further express their individual concerns. These meetings were 

also held to give commenters who did not have a chance to participate in the roundtables 

another avenue to discuss their ideas and concerns with us.24

* * * 

This Report is the culmination of these efforts, and is intended to do five things: 

(i) explain the process the Copyright Office undertook to study this issue; (ii) catalog and 

describe the wide variety of factual circumstances that the many commenters offered as 

examples of what they believed to be the orphan works problem; (iii) set out the legal 

backdrop for the orphan works issue; (iv) summarize the various solutions to the 

problems proposed by the commenters; and (v) present our findings and conclusions 

about the orphan works issue, and set forth our recommendations for addressing the 

problem. 

 24 A list of the parties with whom the Office met informally is included as Appendix D. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

III.Description of Orphan Work Situations 

A. Introduction

This section summarizes problems of identifying and locating copyright owners 

as cited and described by the public during the course of the study. To date, very little 

systematic research of specific problems related to unidentifiable and unlocatable 

copyright owners had been undertaken. While practical experience and numerous 

anecdotal examples suggested very real problems because of unidentifiable or 

unlocatable copyright owners, the magnitude and precise contours of these problems 

across various categories of works and various forms of uses remained largely unknown. 

Thus one of the Office’s goals from the outset of this study was to learn more about the 

scope and dimensions of orphan works problems by collecting information about specific 

situations where users wished to make use of a copyrighted work but could not because 

they were unable to identify and locate the copyright owner in order to ask for 

permission.25 

By all accounts, the public responded enthusiastically. We received over 850 

written initial and reply comments, describing an enormous variety of problems and 

proposed uses, with the vast majority of written comments (about 85%) filed by 

individuals. These numbers alone, however, do not accurately portray the actual extent 

of the orphan works problem. A large portion of the comments (about 40%) did not 

identify a specific instance where a copyright owner could not be identified or located. 

Another portion (10%) presented enough specific information for us to conclude that the 

problem presented was not in fact an orphan works situation. 

Still, approximately 50% of comments did contain information that could fairly be 

construed as presenting an orphan works situation, and a significant number of those 

comments (about 45%, or about 24% of all comments) provided enough information 

about a specific situation for us to conclude that it presented an orphan works situation. 

But here again, these numbers alone do not tell the complete story. Several of the 

comments discussing genuine orphan works situations were submitted by trade 

associations, academic societies, or other organizations, which surveyed their members, 

collected responses, and aggregated numerous genuine orphan works situations into a 

 25 See 70 Fed. Reg. 3739, 3741-42. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

single comment. For example, the submission by the College Art Association provides 

several examples where the user was unable to identify and locate a copyright owner in 

the course of publishing scholarly studies of art history and art education.26 Additionally, 

the submission by Carnegie Mellon University Libraries details that institution’s 

systematic study of the feasibility of obtaining permission to digitize and provide webbased access for its collection, during which it discovered that for the books in the study, 

22% of the publishers could not be found.27

This Section will attempt to organize the situations most frequently described in 

the comments in a meaningful and understandable way. First, it will set out the most 

common obstacles to successfully identifying and locating the copyright owner, such as 

(1) inadequate identifying information on a particular copy of the work; (2) inadequate 

information about copyright ownership because of a change of ownership or a change in 

the circumstances of the owner; (3) limitations of existing copyright ownership 

information sources; and (4) difficulties researching copyright information. For each of

these categories, we cite examples from the record to illustrate the problem, explain 

efforts by users to overcome these obstacles, and, in some cases, cite examples where a 

user was successful in locating the copyright owner in such situations. 

Second, this section will describe other situations raised by commenters that were 

alleged to be “orphan work” situations but upon closer inspection are outside the scope of 

this inquiry. These include situations where the user contacted the owner, but did not 

receive permission to use the work, either because the owner did not respond to the 

request, refused the request, or required a license fee that the user felt was too high. 

These issues are outside the scope of this inquiry because in such cases the copyright

owner can be identified and located, and thus the question of the use of the work is left to 

the negotiation between the owner and the user, or the application of an existing 

exemption to copyright, and not any proposed solution to the “orphan works” problem. 

Other problems described in this section are those which may be concurrent with orphan 

work situations, but which do not involve locating a copyright owner and thus are outside 

 26 College Art Association (“CAA”) (647). See also Library Copyright Alliance (“LCA”) (658) 

(aggregating many responses from various member libraries); and Authors Guild (R135) (aggregating 

responses to a survey of members). 

27 Carnegie Mellon University Libraries (“Carnegie Mellon”) (537).

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

the scope of this proceeding. These problems include general difficulties determining the 

status of copyright protection for a given work, and problems related to the legal 

protection accorded pre-1972 sound recordings. 

Finally, we also try to catalog the proposed uses that the commenters indicated 

were most affected by orphan works situations. In our view most of the uses described 

fall into four general categories: (1) uses by subsequent creators who add some degree of 

their own expression to existing works and create a derivative work; (2) large-scale 

“access” uses where users primarily wish to bring large quantities of works to the public, 

usually via the Internet; (3) “enthusiast” or hobbyist uses, which usually involve 

specialized or niche works, and may also involve posting works on the Internet; and (4) 

private uses among a limited number of people. It is important to keep these categories 

in mind when considering any proposed solution to the orphan works problem so that the 

proper balance between removing unnecessary obstacles to productive uses of the work 

and preserving the interests of authors and copyright holders can be struck by such a 

solution.

B. Obstacles to Identifying and Locating Copyright Owners 

1. Inadequate Information on the Work Itself 

A search for the owner of copyright in a work almost always begins with 

information available on the work itself. The comments, however, describe numerous 

situations involving works that bear no information about the author or the owner of 

copyright in the work – no name of the author, no copyright notice, no title in short, no 

indicia of ownership on a particular copy of the work at all.

28 While the legal 

consequences of omitting an effective copyright notice were minimized during the 

process of revising U.S. copyright law for Berne accession,29 the practical effect of such 

an omission from the copy of the work is that often a search for the owner of copyright in 

the work is dead in its tracks as soon as it has begun. Without even a name to start with, 

potential users must rely on circumstantial or contextual information – to the extent that

any is available – to ascertain the relevant factors in deciding whether to exploit the work, 

e.g., whether it was likely published, whether it was likely registered and renewed, 

 28 See CAA (647) (discussing many examples).

29 See infra Section IV, Legal Background. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

whether it may have been a work for hire or instead used under a license agreement, etc. 

Ordinarily a copyright notice is an effective, efficient mechanism to provide information 

about copyright ownership, and to help subsequent users avoid a situation where they are 

forced to make a “best guess” about copyright ownership. Yet the comments suggest that 

where there is no indicia of ownership at all, these are exactly the sorts of best guesses

that users are frequently asked to make in the orphan works context. 

The comments show that this obstacle is most pervasive – by far – with 

photographs. Again and again, the comments point to situations involving inadequate 

information about the author or owner on individual photographs. Numerous individuals 

complained about situations where they could not use photographs, or did so with 

trepidation, because they simply had no way of even knowing who took the picture.30 

The most common recurring situation with photographs typically involves the reprinting 

of old family photographs for preservation, sentimental, or nostalgic purposes. Usually 

the commenter owns an old, damaged or deteriorating photograph with no identifying 

information about the photographer, or outdated information at best. The commenter 

presents the photograph to a photo-finisher for reproduction, but the finisher refuses to 

reproduce the work. We understand that most commercial photo-finishers fully 

comprehend the liability risks associated with the reproduction of the copyrighted works, 

and therefore have broad, strict policies against such reproduction where there is any 

indication that the work may be protected by copyright. Thus, in the typical scenario 

described in the comments, a clerk or other employee declines to provide the service, and 

may even explain why the photo-finisher cannot reproduce the photograph. But 

invariably, the exchange frustrates both the owner of the photograph who would like the 

work reproduced or preserved, as well as the photo-finisher who would like to profit from

the transaction. As one representative of a photo-finisher stated during the roundtable 

discussions: 

[W]e’re in a situation where we’ve got those kind of pieces sitting in front 

of us where, you know, the customer’s upset and rightfully so because 

they can’t get a family photograph. And we’re in a situation as a retailer 

 30 See, e.g., Spurgeon (54); Duffy (56); Duncan (65); Earnest (78); Arnold (108); Johnson (111);

Fox (118); Rook (121). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

where we’d like to do nothing more than take their money, but we can’t 

because of our policy and the law.31

Another situation involving photographs recurred frequently in the comments. 

Archives, libraries and museums maintain vast collections (in some cases, millions) of

photographs, very few of which have any indication of who the author was.32 Typically 

these institutions acquire these works by donation, such as where individuals give 

personal effects to a museum upon the death of a family member, or where a scholar 

donates professional writings to a library upon retirement, and similar situations. While 

these occurrences are common, the donors rarely have information about the copyright 

provenance of the materials they donate. These institutions then face a dilemma in 

striving to meet the expectations of donors and in fulfilling their institutional purpose of 

preserving and making works available, while also complying with the law of copyright 

and minimizing their exposure to liability for infringement. In most cases these 

institutions err on the side of caution. Most appear to allow access to these materials on 

their facilities, but restrict reproduction. Some museums may also display these works 

publicly in exhibits, or even include them in other programming or materials, but usually 

only where other circumstantial information about the work (such as the most likely 

author, the date of creation, etc.) allows them to perform some level of due diligence 

research about copyright ownership before using the work. 

The comments also provide information about situations involving inadequate 

information on the work itself in other categories of works as well, including the 

following: 

• literary works (such as unpublished and/or anonymous manuscripts 

and letters);33

• audiovisual works (such as home videos and/or instructional 

films);34

 31 August 2 Roundtable Tr. at 34 (Comment of Joe Lisuzzo, Wal-Mart Stores, Inc., 

Photomarketing Association Mass Merchants Council). 

32 See, e.g., University of Washington Libraries (189) (describing collection of “about a million”

photographs at the University of Washington Libraries); Cornell University Library (569) (describing one 

library at Cornell University with a collection of “over 350,000 unpublished photographs ... [y]et only 1%

of the photographs have any indication as to who created the photograph”); The J. Paul Getty Trust, The

Metropolitan Museum of Art, and the Solomon R. Guggenheim Foundation (“Getty”) (610) (noting the 

collection of “over 2 million images” at the Getty Research Library). 

33 See, e.g., Getty (610).

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

• works of fine art and visual art (such as images and/or illustrations, 

especially those posted to and found on the Internet);35 and 

• various ephemera (such as postcards, brochures, pamphlets).36

Solutions to the problem of inadequate information on the face of the work are 

few and far between in the comments. As alluded to earlier, when confronted by the 

absence of clear information about the work’s owner, most users simply do not use the 

work. In situations where the items have been donated to an institution, there may be 

records associated with that donation, such as the name of the donor and his or her estate, 

and therefore some additional information may be available. But where authorship of a 

specific work cannot be determined, this additional information may not be very helpful. 

In spite of this uncertainty, however, users occasionally exploit works having 

indeterminate ownership. This typically occurs only when the user perceives an 

acceptable risk based on the facts surrounding the work and the use at issue, and almost 

always after the user has performed some degree of due diligence in attempting to locate 

copyright owner based on the limited contextual information available. This appears to 

be the case for both experienced users of copyrighted works,37 as well as for members of 

the public generally.38

2. Changes of Ownership or in the Circumstances of the Owner 

Even if an author or copyright owner can be identified from a copy of the work, 

events since the creation of that copy can affect the ability of a subsequent user to 

identify or locate the current copyright owner. Copyright is, after all, a form of property. 

As with other forms of property, ownership may pass through many hands, and by 

 34 See, e.g., Baker (253) (discussing films “produced by amateurs who did not include credits”); 

Kernochan (666) (discussing difficulties clearing rights in video clips for an educational resource, many of 

which were of “unidentified origin”). 

35 See, e.g., CAA (647).

36 See, e.g., Goodman Associates (46) (postcards); Miller (573) (various ephemera of local 

interest). 

37 See, e.g., National Institutes of Health, National Library of Medicine (654) (describing a policy 

for conducting a search for copyright owners; if unsuccessful, materials are web-published with a 

disclaimer). 

38 See, e.g., Earnest (78) (describing the use of an aerial photograph of a building on the campus of

Stanford University in a “historical exhibit at Stanford’s Computer Science Department”; first a search of

local aerial photography companies was conducted, but all denied ownership; the user remains “uneasy

about its ambiguous status”). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

various legal mechanisms. Therefore it is not uncommon for the chain of title to 

copyright in a work to be somewhat complicated to trace. Even where ownership does 

not change hands, the owner’s circumstances may change. The owner may change 

addresses during a move to a new home or place of business. The owner may die, 

dissolve, or otherwise cease business altogether. These situations are a common refrain 

in the comments. 

a. Changes of Ownership 

A number of comments discuss situations where a user wished to make use of a 

specific work, but discovered that the original author or owner had transferred rights to 

another party. The circumstances of these transfers span a wide spectrum of specific 

situations, from a transfer of rights to just a single work, to mergers between two 

companies, to acquisitions of the assets of an entire company.39

The comments, however, raise common themes across these situations. First, 

these situations almost always involve copyright ownership by a business entity. Second, 

the comments demonstrate that each additional party to ownership adds another layer of 

complexity and potential difficulty to a prospective user. The comments also suggest that 

multiple transfers can create problems for the owner itself. These parties are simply 

unaware of what they own. Determining ownership conclusively after multiple mergers, 

transfers or acquisitions can be a difficult, time-consuming task. This problem can be 

exacerbated in situations where the work is out of print, or is not otherwise being 

exploited commercially; determining ownership conclusively in such a case may not be 

cost-efficient. When this is the case, the owner may have little incentive to invest the 

time and resources required to resolve the matter, or even to respond to requests from

potential users. As a result, users may be caught between multiple potential owners, all 

of whom refuse to be the sole, true owner.40 Typically in these situations, the status of 

ownership in the work remains unknown to the potential, who usually abandon the 

planned use. 

 39 See, e.g., Spehr (516); Kolling (527); Buck (555); UCLA Film and Television Archive (638). 

40 See, e.g., Thomas (570) (describing a situation where two publishers both said the other owned 

rights to a particular work); UCLA Film and Television Archive (638) (describing a situation involving a 

1933 feature film produced by Paramount; Universal now owns most of the Paramount library from the 

time period, but the parties dispute ownership of the specific work in question); Grayson (R43) (also 

discussing situation between Paramount and Universal). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

b. Changes in the Circumstances of the Owner 

The comments suggest that changes in the circumstances of the copyright owner 

are also primary causes for the current owner to be unidentifiable or unlocatable. While 

the situations vary from a simple change of address to death or dissolution, they tend to 

break down between situations involving ownership by individuals and those involving 

ownership by business. These situations present similar issues, but each is discussed 

separately below.

With respect to individual copyright owners, the comments frequently described a 

problem involving the death of the author or the last known copyright owner. In some

cases, users do not know how or where to access information about the author’s estate. 

In other cases, it is unknown to the user whether the author even provided for transfer of 

ownership in his estate. On the other hand, some comments describe cases where 

individual owners do make long-term provisions for their copyrights in their estates, and 

in these cases many estates are actively interested in the exploitation of these interests.

41 

Transfer of copyright ownership from one generation to the next by will, or 

otherwise, creates another class of problems involving individual copyright owners. 

Some heirs are completely unaware of their rights. Rights may be fractionally distributed 

among a variety of heirs, some or all of which may be remote from each other, or the 

potential user. Very little can be categorically stated about whether users proceed with 

planned uses in these situations, which vary so widely that user decisions almost always 

turn on the facts of each case. 

With respect to corporate owners of copyright, going out of business or ceasing 

operations appears to be one of the most common frustrations to potential users. The 

comments provide numerous examples along these lines, many involving software 

companies, where the work may be referred to colloquially as “abandonware.”42 

Bankruptcy of a business can also inhibit the availability of good information about 

 41 See, e.g., Perkins (205). 

42 See, e.g., Johnson (334); Hamill (354); Pechter (347); Getchel (583). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

copyright ownership.43 In these situations, the comments suggest that most potential 

users do not proceed with planned uses. 

3. Limitations of Existing Information Resources 

The comments show users employ a wide variety of techniques for searching for a 

copyright owner. Examples include basic Internet searches, using old phone books, and 

searches for death certificates and records concerning estates.44 These comments 

demonstrate a great range in the difficulty of searches across categories of works and 

types of uses, due in part because certain industries and user communities have developed 

existing, publicly accessible databases regarding copyright ownership.45 These existing 

information resources, however, do have limitations, which can complicate and frustrate 

searches, and therefore a number of potential uses as well. 

a. Copyright Office Resources 

The Copyright Office is a primary resource of information about copyright 

ownership. The Office maintains extensive records related to copyright registrations and 

ownership. Most of the Office’s records are public documents and are available to the 

public during normal business hours. For example, from 1891 to 1982 the Copyright 

Office published the Catalog of Copyright Entries (CCE), which listed all registrations 

made during a particular period of time. After 1982, the CCE was discontinued, and all 

registrations from 1978 to the present are recorded in an automated catalog. This catalog 

allows users to search for works in various ways (e.g., by title, by category of work) 

online 24 hours a day through the Office’s website.46 

 43 See, e.g., Rosen (62) (commenter intervened during bankruptcy proceedings to address 

ownership of copyright in software owned by the bankrupt company); Corry (64) (commenter interested in

republication of a specialized magazine, but unclear of ownership due to bankruptcy of original publisher);

Troup (283) (commenter wished to use certain software and was willing to pay, but does not know who to

pay due to bankruptcy of the original developer). 

44 See, e.g., Sifferman (137) (trying various methods to locate an old photographer); Carlson (168) 

(describing various search resources from online telephone directories to contacting estates); Brooks (340) 

(contacted a state agency for information).

45 See generally ASCAP (628); BMI (640); Harry Fox Agency (690); see also CCC (691). 

46 See http://www.copyright.gov/records/. This resource, however, is limited to information 

collected by the Office since 1978. During the course of the study, many commenters and participants 

suggested the Office make all of its records – especially pre-1978 registration records – available and 

searchable online. See, e.g., Kernochan (666) (“Perhaps digitizing the pre-1978 records could facilitate

efforts to locate copyright owners and reduce the scope of the ‘orphan works’ problem”); see also Pierce

(637); Peters (670); RIAA (687). Many participants suggested that doing so would greatly reduce the 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

In addition to recording registrations of claims to copyright and copyright renewal 

registrations, the Office also records documents related to copyright ownership, such as 

assignments, transfers, and security interests.47 These documents are maintained in 

microfiche format, with more recent documents available in electronic format, and are 

available to the public during regular business hours. 

The Office also offers fee-based searches of any of these various kinds of 

records,48 and provides information useful for researching the ownership of copyrights.49 

Private search firms offer similar searches of Copyright Office records. The circular also 

offer many helpful suggestions for searching the Office’s records, and for conducting 

copyright searches generally, but warns that the absence of information about a specific 

work in the Office’s records may not mean that the work is unprotected. Lastly, the 

Office maintains a webpage that refers online visitors to other Internet-based information 

resources maintained by third-parties that might have useful information about copyright 

ownership.50 

b. Third-Party Information Resources 

Third-party or private resources play an important role in the accumulation and 

maintenance of copyright ownership information, and therefore serve as important 

resources to potential users.51 Usually these resources exist where industry groups have 

 search costs associated with searching for Copyright Office records that are not currently available online. 

However, doing so would involve a significant expenditure of resources. The Office has studied the 

feasibility of making this information available and searchable online, and preliminary figures estimated

the cost to be about $35 million. July 26 Roundtable at 43-44 (statement of Marybeth Peters, Register of

Copyrights). 

The Office also learned during the orphan works study that some researchers have made a few pre1978 registration records available online independently of the Copyright Office. See, e.g., The Online 

Books Page: Information About the Catalog of Copyright Entries, available at

http://onlinebooks.library.upenn.edu/cce/; U.S. Catalog of Copyright Entries (Renewals), available at

http://www.kingkong.demon.co.uk/ccer/ccer.htm. 

47 17 U.S.C. § 205 (2005). 

48 See 37 C.F.R. § 201.3 (2005). 

49 See U.S. COPYRIGHT OFFICE, CIRCULAR 22: HOW TO INVESTIGATE THE COPYRIGHT STATUS OF

A WORK (2005). 

50 See Copyright Internet Resources, available at http://www.copyright.gov/resces.html. 

51 See, e.g., ASCAP (628) (noting that the databases of performing-rights organizations contain 

extensive contact information for owners of copyright in musical works, and also have staff available to

assist with inquiries); BMI (640) (noting that performing-rights organizations, as well as the Harry Fox 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

had some incentive to centralize this information, including situations where owners have 

utilized some form of collective rights administration, as in the music industry. In other 

cases interested users and researchers have developed other information resources.52

Generally these third-parties tend to provide good information about copyright 

ownership. Moreover, the comments show that these organizations understand that 

providing such information tends to reduce orphan works situations. This is not to say 

that orphan works problems vanish altogether where various groups have provided these 

resources, even in the case of the performing-rights organizations.53 But the comments

do suggest that orphan works situations appear to be less frequent in areas where rights 

may be administered collectively, or where these resources exist otherwise, than in areas 

where similar resources have not yet developed. 

c. Specific Limitations 

Even where ownership information resources exist, however, they have 

limitations. For example, the comments generally describe situations where these 

resources did not have information about a particular work.54 In other cases, comments

described situations where these databases provided inaccurate or conflicting 

information,55 or that these resources may be too remote or too costly to make use of, 

rendering them practically inaccessible for some users. For example, some commenters 

note that for the portion of Copyright Office records that are not available online, many 

users cannot afford the expense of traveling to Washington, D.C. to access records, or 

paying the Office or private firm to conduct the search.56 Finally, searchers must often 

consult other general kinds of public records when tracking down the copyright owner, 

 Agency have extensive databases and can offer licenses); CCC (691) (noting that the Copyright Clearance 

Center has “built up substantial information” related to finding right-holders). 

52 See supra note 46. 

53 See Save the Music/Creative Commons (R114) (describing a search of ASCAP’s repertory that

failed to return positive results for songs of interest to Save the Music). 

54 See id. 

55 See, e.g., Kline (151) (used in spite of conflicting information between the Copyright Office, 

Harry Fox Agency, ASCAP, and BMI), 

56 See Carnegie Mellon (537) (describing fees associated with various searches at the Copyright

Office, and asserting that many cannot afford such searches, especially given the very real prospect of a 

refusal of permission or otherwise no clear authority to proceed with a use after spending much time and 

money to conduct a search). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

such as old estate records. The availability and accuracy of these kinds of information 

resources may vary dramatically from jurisdiction to jurisdiction, yielding a mixed bag of 

search experiences.57 

4. Difficulties Researching Copyright Information 

The comments also show that conducting searches can prove to be costly, timeconsuming endeavors. The comments are littered with examples of situations where the 

trail ran cold, turned into a dead end, or simply involved more time and money than the 

user was willing to spend.58 Often the user can incur substantial costs without any 

guarantee that the search will produce information that provides a clear chain of title.59 

Some searches turn into outright investigations.

60

In many cases, the mere perception that a search will become long and arduous is 

itself enough to thwart some potential uses.61 This appears to be the case for several 

reasons. The comments suggest that the nature of the planned use often affects whether 

the user decides to bother searching for the copyright owner at all. Some comments 

claimed that in academic, scholarly, and other non-commercial uses, any search costs 

immediately outweigh the expected monetary return of the use. 

 57 See Perkins (205) (commenter turned up an email address for a deceased author’s heir after a 

relatively quick Internet search of estate records in the jurisdiction); but cf. Berard (181) (describing a 

group of users who are interested in a radio series whose original right holders were known, but also known

to be deceased, the users have been unable to verify whether rights passed to their son); Pierce (637) 

(describing requests for wills and death certificates, saying “[s]ometimes these are useful, but often they ... 

are a dead end.”). 

58 See, e.g., Barr (257) (commenter wished to use a math book in a course, but gave up the search 

when the original publisher referred him to original author’s widow who was likely deceased); Duke # 1 

(597) (“Search costs are currently so high that many users simply forgo using the work and never start the 

search in the first place”). 

59 See Cornell University Library (569) (describing the experience of the Cornell University

Library in a recent project for which clearance was needed for a specific set of works; after spending an

estimated $50,000 in staff time on clearance issues, no copyright owner could be determined for 58% of the 

titles included in the project). 

60 See, e.g., Pickett (603) (describing a music professor’s search for published music and 

manuscripts of a French female composer; after contacting the French National Library and SACEM, the 

French collective rights administration organization, no estate or known relatives could be found, yet 

SACEM still said the permission of the estate was needed; commenter hired a private investigator who 

turned up two distant relatives who were surprised to learn of their rights, yet still have not given 

permission to use the works).

61 See Orphan Works Analysis and Proposal, Center for the Study of the Public Domain, Duke 

Law School (“Duke #2”) (597) (“[S]earch costs are so high in general that many of our respondents said

that they did not start any search in the first place. ... If costs are too high, users will simply forgo even

looking for an author, and will abandon the use of a work.” (emphasis in original)). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

In other cases, the characteristics of the underlying work can affect the decision to 

undertake a search. The comments discuss some of the types of information about an 

underlying work that users frequently look for when deciding whether a search for the 

owner is likely to be productive. For example, it appears to be common knowledge 

among experienced searchers that the age of the work can often affect the availability of 

information about copyright ownership.62 Similarly, where the work is obscure or 

foreign, users often assume that records about ownership do not exist, or on the off 

chance that they do, that such records are practically unavailable.63 In these situations the 

commenters almost always abandon use of the work altogether. 

Comments that discuss perceived difficulties alone, however, provide little 

information about actual difficulties experienced during genuine searches for copyright

owners. This point should not be overlooked, because other comments suggest that for 

many searches abandoned at an early stage, the user would have found the right-holder 

with slightly more effort. 

For example, one commenter described his experience searching for the estate of 

Roger Hayward, an illustrator whose drawings the commenter wished to use in 

connection with an article he was writing about the history of molecular illustration.64 

Preliminary searching showed that Mr. Hayward retained rights in his work, that he had 

died in 1979, and that some other users had also been interested in using Hayward’s 

drawing but had been unable to track down the author’s heirs for permission. This 

commenter, however, continued searching. Using Internet-based tools, he quickly found 

the following: that Mr. Hayward died in Merced County, California; that Hayward left 

his entire estate to his wife, Elizabeth; that she died in 1983; and that she left her estate to 

the couple’s nieces and nephews. After a few more hours of searching the Internet, the 

commenter located two of these relatives and even had an email address. Within a few 

days had received written permission to use his work. 

 62 See, e.g., Carnegie Mellon (537) (“In general, the older the book, the more difficult it was to

find the publisher”). 

63 See Creative Commons (643) (discussing difficulties and high costs of clearing a number of

relatively obscure foreign works). 

64 Perkins (205).

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

In sum, while many comments suggest that many orphan works situations involve 

real dead ends – even for experienced copyright searchers – comments like the one 

described above suggest that at least some of these situations might have been resolved 

with just a little more searching in the right place.

5. Problems Outside the Scope of the Study 

a. Copyright Owner Known, But Permission Not Obtained 

A number of comments described situations involving works that were “out of 

print” (i.e., not currently being exploited commercially), or where the license fee was 

arguably too high, or where the known copyright owner did not respond to requests for 

permission to use the work.65 Upon closer examination, however, a common thread 

through each of these comments is an identifiable and locatable copyright owner, making 

these situations outside the scope of this study.66 While we have refrained from offering 

a categorical definition of “orphan works,” and have invited interested parties to submit 

definitions,

67 the term certainly must mean what it implies: that the “parent” of the work 

is unknown or unavailable. Therefore works whose owners are known, and situations 

involving those works, do not fit this definition and are not the subject of this inquiry.68 

b. Problems Determining Copyright Status 

The comments also describe a number of situations where users complained about 

not only about difficulties identifying or locating a copyright owner, but also about 

 65 Lipton (87) (describing high cost of licensing rights); Sneden (135) (describing a known 

photographer who offered to sell to sell a reprint of a copy at a price the commenter found too high);

Lawrence (210) (citing problems with slow responses and high fees); Woods (574) (describing problems

related to the documentary Eyes on the Prize related to renegotiation of license fees for music contained in

the documentary); Simms (R27) (discussing difficulties locating out of print books and music). 

66 See Association of American Publishers, Inc. (“AAP”) (605) (stating that where difficulties are 

encountered even after the copyright owner is identified, “such matters are outside the scope of the ‘orphan 

work’ issue”); MPAA (646) (“[A] work is not properly classified as an orphan if the user has been able to 

communicate with the copyright owner but has not succeeded in gaining the permission she seeks, whether 

because of the failure to agree upon a license fee or for some other reason”). 

67 Notice of Inquiry, supra note 18, at 3741. 

68 This is not to suggest that all “out of print” works fall outside the scope of this study. Rather, 

we simply point out that while the concepts of “out of print” status and “orphan work” status may be 

related the two are not identical. The “out of print” description suggests the work is not currently in

commercial exploitation, irrespective of whether this is because of some conscious choice by the copyright

owner, or because there simply is no copyright owner. Conversely, there appears to be consensus in the 

record that an “orphan work” is a copyrighted work for which an owner cannot be identified or located, 

irrespective of whether the work is being exploited commercially. Both terms may aptly describe a single 

work, but the concepts are not one and the same. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

problems associated with determining whether a work is protected by copyright at all.69 

We generally see these problems as outside the scope of this study. 

Determining the status of copyright protection for a work can be very easy or it 

can be very difficult depending on the work. Such difficulties, however, are almost 

always related to various aspects of the law not at issue in this proceeding, e.g., the 

doctrine of “publication” under the 1909 Act, the “work for hire” doctrine, etc. To help 

users with these questions, the Copyright Office publishes a number of documents that 

provide useful information to those unfamiliar with the scheme of legal protection as it 

has evolved.70 From the outset, however, the purpose of this study has been limited to 

examining situations involving works that are protected, but for which no copyright 

owner can be identified or located. As such, problems determining copyright status fall 

outside the scope of this inquiry. Of course, to the extent that determining the identity of 

the author or copyright owner assists in determining the copyright status of a work, this 

study certainly is relevant to such situations. 

c. Problems Related to Pre-1972 Sound Recordings 

A few comments raised concerns related to problems with pre-1972 sound 

recordings, which are also outside the scope of this proceeding.71 Congress did not 

extend federal copyright protection to sound recordings until 1972. Sound recordings 

fixed before that time remain subject to protection afforded by state laws until February 

15, 2067.72 Until that time, any amendments to federal copyright law – including any 

exception addressing orphan works generated by this proceeding – will have no effect on 

 69 See, e.g., Rhodes (68) (complains about difficulty determining whether works from 1902 are 

still protected by copyright); Romano (102) (finding it difficult to determine copyright status of films in a 

personal collection that date from 1894-1977); Meadow (438).

70 See U.S. COPYRIGHT OFFICE, CIRCULAR 15: RENEWAL OF COPYRIGHT (2005); U.S. COPYRIGHT

OFFICE, CIRCULAR 15A: DURATION OF COPYRIGHT: PROVISIONS OF THE LAW DEALING WITH THE LENGTH 

OF COPYRIGHT PROTECTION (2005); U.S. COPYRIGHT OFFICE, CIRCULAR 15T: EXTENSION OF COPYRIGHT 

TERMS (2005); U.S. COPYRIGHT OFFICE, CIRCULAR 22: HOW TO INVESTIGATE THE COPYRIGHT STATUS OF 

A WORK (2005). 

71 See, e.g., Brooks (579). 

72 17 U.S.C. § 301(c) (2005). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

rights or remedies applicable to these works under state laws. This view is consistent 

with the few comments that addressed pre-1972 sound recordings.73 

C. Categories of Proposed Uses 

The comments presented not only descriptions of problems, but also information 

about the various kinds of productive uses of orphan works. In our view these uses fall 

into four general categories as described below. It is important to keep these categories 

in mind when considering any proposed solution to the orphan works problem. In many 

cases these types of uses reveal the users’ needs or preferences, or their amenability to 

certain forms of relief that might be available to a resurfacing copyright owner. With this 

in mind, these categories serve as a reference point for the discussion below on how best 

to remove unnecessary obstacles to productive uses of works, while preserving the 

interests of authors and copyright holders.

1. Uses by Subsequent Creators 

The comments describe many situations where subsequent authors and creators 

wish to incorporate existing works into their own creative expressions. We loosely refer 

to these situations very generally as uses by subsequent creators.

74 The typical scenario

might involve an author or publisher that wishes to include a photograph in a new book, 

or a movie studio that wishes to create a film version of an obscure novel. 

There are a few other important aspects about this particular category of use to 

keep in mind. First, in this category we have envisioned uses that involve an extensive 

use of the underlying work that would go beyond the limits of fair use. Second, 

commercial users in these cases typically incur a significant reliance interest if they begin 

use of the work. This reliance can take many forms, but in most cases a new work has 

 73 See Brooks (579) (observing that pre-1972 recordings “remain under state and common law 

until the year 2067 ... [t]hus they may not be directly impacted by modifications in federal copyright law”); 

RIAA (687) (“Since pre-1972 U.S. sound recordings are protected only under state law, we assume that 

questions concerning their ‘orphan works’ status are outside the scope of this proceeding”). For a recent 

study of the issues related to pre-1972 sound recordings, see June M. Besek, Copyright Issues Relevant to 

Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and 

Archives, COUNCIL ON LIBRARY AND INFORMATION RESOURCES AND THE LIBRARY OF CONGRESS

(December 2005) (available at http://www.clir.org/pubs/reports/pub135/contents.html). 

74 See, e.g., Goodman Associates (46) (documentary about the history of postcards); Nelson (67)

(used archival footage of unknown provenance in a film); Wheeler (180) (freelance artist would like to use 

old photographs in new works); Briggs (369) (wanted to include photos in a history of a station in the 

Antarctic); CAA (647) (describing scholarly journals and publications that incorporate works of art). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

been created, and costs incurred in the production and distribution of copies. Therefore 

commercial users tend to be highly sensitive to any injunctive relief available to the 

surfacing copyright owner, especially in situations where an injunction comes at a critical 

point in the marketing and distribution of the work.75 However, in some situations (e.g., 

unpublished works), commercial users acknowledged that injunctive relief might be 

appropriate.76

It should also be noted that commercial users in this category usually budget for 

costs associated with the use of works. Generally they are willing to pay license fees for 

permission to use works before their planned uses, and therefore tend to be more 

amenable than non-profit users to paying some sort of monetary damages or 

compensation to the resurfacing copyright owner, usually in the form of a reasonable 

royalty or fair market value for on-going use of the work.77

2. Large-Scale Access Uses 

The comments also describe a number of situations where institutional users wish 

to make a large quantity of works available to the public. We refer to this second 

category of uses as large-scale access uses.

78 Typically users in this category are 

academic or non-profit institutions, such as libraries, archives or museums. These 

organizations maintain or curate vast quantities of works, many of which have been 

donated to the organizations with very little information about copyright ownership. 

Ideally these users would like to digitize and post collections online, or develop other 

programming that incorporates these works in connection with their other activities, 

which are usually non-commercial.79 

 75 AAP (605); MPAA (646). 

76 July 26 Roundtable Tr. at 100-101 (Comment of Allan Adler, Association of American

Publishers) (“However, with respect to the area of unpublished works, there may be certain areas where ... 

there might be exceptions made with respect to when injunctive relief possibly could be available”). 

77 AAP (605); MPAA (646) 

78 Strong (473) (describing access to library materials at UCLA and the University of California – 

San Diego); Carnegie Mellon (537) (describing plans to digitize of a portion of its collection); Getty (610) 

(describing current practices in the museum community of digitizing collections and making them available 

online); LCA (658) (describing the experiences of many individual libraries during their digitization

projects); Google (681) (describing the Google Print project involving large-scale digitization and 

indexing).

79 Note, however, that at least one commenter in this category plans large-scale commercial uses. 

See Google (681).

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A few important aspects about this mode of use should be kept in mind. First, this 

mode of distribution usually involves very little cost for each individual work. So while 

the user’s reliance interest in the project as a whole may be quite significant, the reliance 

interest for each individual work is usually very low. Similarly, where the reliance 

interest for each individual work is low, the overall value of each individual work to the 

project as a whole is also very low. This can vary of course, depending on the extent to 

which the use highlights or features any one particular work or group of works. 

With this in mind, generally the commenters who propose to make these kinds of 

uses have been agreeable to a system that allows for injunctive relief for a resurfacing 

owner, provided that such relief is limited in scope only to the work or works for which 

that party can demonstrate ownership, and not to the entire collection or display. 

Conversely, because of the large quantity of works involved in these uses, generally these 

users are adverse to paying monetary compensation for the use, especially in the case of a 

non-commercial use. Some advocate that there should be no monetary compensation 

with the trade-off that use would be permitted only for a limited amount of time.80 

Others would not limit the time period of the use, but would limit compensation to actual 

damages capped at various maximum amounts.81

3. Enthusiast Uses 

Another category of uses commonly described in the comments involves uses by 

enthusiasts of a particular work, or hobbyists or experts in a particular field. We loosely 

refer to this category of uses as enthusiast uses.

82 The typical example of these situations 

in the comments involves an individual with a personal interest in a particular work, 

artist, or subject, or an individual with academic or technical expertise in a specific field. 

Usually these commenters expressed interest in using works from these fields, which in 

most cases appeared to be of limited interest to the general public. The specific areas of 

 80 Getty (610).

81 Various (R127) (describing the “cap on actual damages” approach and indicating support for it

from by many parties, including College Art Association, Glushko-Samuelson Intellectual Property Law 

Clinic, Library Copyright Alliance, Public Knowledge). 

82 See, e.g., Corry (64) (interested in republishing a specialized magazine); Smith (90) (interested 

in republishing a companion to a famous literary anthology); Thorm (142) (describing fans who would like

to republish a role-playing game); Meadow (438) (would like to use old journals and magazines with

information about the history of the steel industry in the United States); Geiger (544) (interested in

biodiversity and “monographic treatments” in the biological sciences).

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

interest vary throughout the comments, but a few fields did recur with some frequency, 

such as genealogical records and materials,83 dramatic radio productions from the last 

century,84 and various software programs.85 Generally the works at issue in these 

comments are no longer available commercially, and therefore these users would like to 

republish them on a limited basis for others who share the same interest or expertise (in 

these cases, this category may overlap with private uses below), or post these works to 

the Internet so that others with shared interests might enjoy the works as well. 

Generally these users do not express any preference for the availability of 

injunctive relief or monetary damages. Their interests rest primarily in the ongoing 

availability or preservation of a particular work itself. The honest desire to comply with 

the law, as well as avoid potential liability, appear to be the primary reasons why many of 

these uses are not undertaken currently. It is our sense, however, that in these cases the 

motivation for the use is not commercial, but rather in honor or celebration of the 

particular work or expression. As such, most of these users would likely comply with the 

wishes of the copyright owner if the rightful party could simply be identified. It seems 

likely therefore, that these users would be amendable to at least the availability of

injunctive remedies as well as some form of monetary damages or compensation. 

4. Private Uses 

The last category of uses recurring throughout the comments involves use by 

individuals for personal purposes, or private uses. There are many examples of these 

situations, but perhaps the most common involves a user who wishes to make a 

reproduction of a family photograph, but the original photographer is unidentifiable, or 

long gone.86 A number of other examples come from the area of software, where the user 

owns a copy of a program that was originally written for a computer or operating system

that is now obsolete.87 In these cases, the user would like to transfer the copy to a new 

 83 See, e.g., Dionne (6); Haslacker (98); Dohnal (191); Struwe (193); Montgomery (202). 

84 See, e.g., HRT (29); WSCA-FM (32); Leary (50).

85 See, e.g., Ashdown (48); Ruske (71); Bowns (84); Mahon (233); Rush (265). 

86 See, e.g., Grudecki (110) (family photos); Grimsley (119) (family photos); Stevenson (150) 

(family photos). 

87 See, e.g., Stowell (298) (limited reproduction of old software used to keep personal notes); Mol

(320) (describing the “transfer” of old software to new platforms). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

system, but understands this to be inappropriate either because of copyright law, or 

because of the license agreement. In other cases, the hardware or software platforms may 

still be widely used, but the original publisher of the software is long gone.88

As with enthusiast users, private users typically do not express a preference for 

the availability of injunctive relief or monetary damages to a resurfacing copyright 

owner. Private users also generally appear motivated by honest attempts to follow the 

law, and in most cases also appear willing to provide some compensation to the copyright 

owner if that party could simply be identified. 

 88 See, e.g., Staggers (300) (began using shareware, and attempted to locate the software company 

in order to pay for the software only to find the company was gone). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

IV. Legal Background 

Development of a comprehensive orphan works solution that fits well within 

domestic and international copyright law requires an understanding of the provisions of 

those bodies of law that relate to orphan works. In general, the orphan works issue is one 

driven by factual circumstances and considerations – in most orphan works cases the user 

is not faced with uncertainty about the copyright law and its applicability to her conduct, 

but with uncertainty about the identity of the copyright owner and how to locate him. 

The legal background, however, is relevant to the orphan works issue in several ways. 

Examination of the Copyright Act reveals several provisions that compound the orphan 

works problem, other provisions that solve the problem (but only for limited sets of 

works, users, or uses), and, finally, still other provisions that provide users with viable 

alternatives to using orphan works in an infringing way. Understanding these provisions 

is necessary when crafting an orphan works solution. Moreover, proposed solutions to

the orphan works situation must be consistent with a firm understanding of both the 

domestic and international copyright systems. This section, therefore, describes the legal 

background and examines the treatment of orphan-works-like situations under the current 

Copyright Act (and its implementing regulations), and the international law limitations 

that would apply to any comprehensive orphan works provision. It is intended to help 

inform the discussion of the orphan works issue to help develop a robust solution that 

learns from experience in the copyright system and provides an efficient complement to 

that system. 

A. Historical Factors that Affect the Orphan Works Problem 

The orphan works issue is, in some respects, a result of the omnibus revision to 

the U.S. copyright law in the Copyright Act of 1976,89 which changed several basic 

features of the system of copyright protection in the United States. Today, copyright 

subsists in original works of authorship upon fixation in any tangible medium of 

expression.90 Works need not be registered with the Copyright Office, or published with 

proper notice, to obtain federal copyright protection, as was the case prior to the 1976 

 89 Pub. L. No. 94-553, 90 Stat. 2541 (1976). 

90 17 U.S.C. § 102(a) (2005). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

Act. The 1976 Act thus made it substantially easier for authors to obtain protection for 

their works. 

The 1976 Act made maintaining protection in those works substantially easier as 

well. Prior to the 1976 Act, the term of copyright was split into two periods of years: an 

initial 28-year term, followed by an additional 28-year renewal term. Protection for the 

renewal term could be secured only by registration of a renewal with the Copyright 

Office during the last year of the first term. Failure to renew properly resulted in 

complete loss of copyright. 

The 1976 Act, however, changed the basic measure of copyright’s term. Instead 

of two fixed terms of years, the 1976 Act provided a single term for the life of the author, 

plus an additional 50 years, which was extended to 70 years in 1998.91 This general term 

applies to works created on or after January 1, 1978.92 Works created before then and in 

the first term of copyright under the old law were still subject to the renewal requirement 

until 1992, when renewal for those works was made automatic by statute.93 The term for 

these works was extended to 75 years in 1976, and then to 95 years in 1998. 

These basic changes were important steps toward the United States’ assumption 

of a more prominent role in the international copyright community. Specifically, these

changes harmonized U.S. copyright law with prevailing international norms, moving the 

U.S. closer to membership in the Berne Convention.94 Berne – the oldest and most 

widely accepted international agreement on the protection of literary and artistic works – 

forbids “formalities” such as registration and renewal as a condition to copyright 

protection.95 The prohibition on formalities has been a fundamental principle of 

 

91 Pub. L. 94-553, § 302(a), 90 Stat. 2541 (1976). See supra note 14. 

92 Id. 

93 Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 

102-307, 106 Stat. 264 (1992) (amending 17 U.S.C. § 304 to add an automatic renewal term). 

94 Berne Convention for the Protection of Literary and Artistic Works (Paris Act 1971)

(hereinafter “Berne Convention” or “Berne”). The U.S. formally acceded to Berne in 1988. See Berne 

Convention Implementation Act, Pub. L. No. 100-568, 102 Stat. 2853 (1988). 

95 “The enjoyment and exercise of these rights shall not be subject to any formality; ....” Berne

Convention art. 5(2). See infra at 60-61. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

international copyright protection for nearly a century, and remains important today.96 

Moreover, there was substantial evidence presented during consideration of the 1976 Act 

that the formalities such as renewal and notice, when combined with drastic penalties like 

forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many 

valuable copyrights.97 Notwithstanding these improvements to copyright in the United 

States, the change to providing automatic protection that subsists immediately upon 

fixation of a work exacerbate the orphan works issue, in that a user generally must 

assume that a work he wishes to use is subject to copyright protection, and often cannot 

confirm whether a work has fallen into the public domain by consulting the renewal 

registration records of the Copyright Office. It should be noted, though, that Congress 

was cognizant of this consequence of the switch to a life-plus-50-years system at the time

it passed the 1976 Act. Congress recognized the problem, but considered it to be 

outweighed by the many benefits of the new system: 

A point that has concerned some educational groups arose from the 

possibility that, since a large majority (now about 85 percent) of all 

copyrighted works are not renewed, a life-plus-50 year term would tie up a 

substantial body of material that is probably of no commercial interest but 

 

96 Berne’s “no formalities” requirement has been incorporated by reference into the modern

treaties addressing copyright. See Agreement on Trade-Related Aspects of Intellectual Property Rights, 

Apr. 15, 1994, art. 9.1, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C,

Legal Instruments–Results of the Uruguay Round vol. 31, 33 I.L.M. 81, 87 (1994); WIPO Copyright

Treaty, Apr. 12, 1997, art. 3, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 65, 69 (1997); WIPO 

Performances and Phonograms Treaty, Apr. 12, 1997, art. 20, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 

76, 80 (1997). 

97 See, e.g., H.R. Rep. No. 94-1476, at 134 (1976) (“One of the worst features of the present 

copyright law is the provision for renewal of copyright. A substantial burden and expense, this unclear and 

highly technical requirement results in incalculable amounts of unproductive work. In a number of cases it

is the cause of inadvertent and unjust loss of copyright. Under a life-plus-50 system the renewal device 

would be inappropriate and unnecessary.”); Copyright Law Revision: Hearings on S. 1006 before the 

Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States

Senate, 89th Cong. 68 (1965) (statement of Abraham Kaminstein, Register of Copyright) (“It is important

for the revised term provisions to do away with the present system of copyright renewal, which is a

nightmare of complexity and which frequently results in the inadvertent loss of protection.”); Copyright

Law Revision: Hearings on S. 597 Before the Subcommittee on Patents, Trademarks, and Copyrights of the 

Committee of the Judiciary, United States Senate, 90th Cong. 37 (1967) (statement of John Dos Passos,

Authors League of America) (“The present system by which copyright has to be renewed every 28 years 

has worked a great deal of hardship. It is very easy for an author to let the time of renewal slip by. A 

number of American and foreign authors or their heirs have lost their copyrights through ignorance or

inadvertence. A man who makes his living by writing finds it hard to keep track of a great number of 

different items. In some cases, the renewal fees can become a real burden. If you do not renew the 

copyright at the specified time, there is no remedy whatsoever.”). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

that would be more readily available for scholarly use if free of copyright 

restrictions. A statistical study of renewal registrations made by the 

Copyright Office in 1966 supports the generalization that most material 

which is considered to be of continuing or potential commercial value is 

renewed. Of the remainder, a certain proportion is of practically no value 

to anyone, but there are a large number of unrenewed works that have 

scholarly value to historians, archivists, and specialists in a variety of 

fields. This consideration lay behind the proposals for retaining the 

renewal device or for limiting the term for unpublished or unregistered 

works. 

It is true that today’s ephemera represent tomorrow’s social history, and 

that works of scholarly value, which are now falling into the public 

domain after 29 years, would be protected much longer under the bill. 

Balanced against this are the burdens and expenses of renewals, the near 

impossibility of distinguishing between types of works in fixing a 

statutory term, and the extremely strong case in favor of a life-plus-50 

system. Moreover, it is important to realize that the bill would not restrain 

scholars from using any work as source material or from making “fair use” 

of it; the restrictions would extend only to the unauthorized reproduction 

or distribution of copies of the work, its public performance, or some other 

use that would actually infringe the copyright owner’s exclusive rights. 

The advantages of a basic term of copyright enduring for the life of the 

author and for 50 years after the author’s death outweigh any possible 

disadvantages.98

The orphan works problem is thus a by-product of the United States’ modern 

copyright system, and has been with us since at least the day the 1976 Act went into 

effect. 

B. Provisions in U.S. Copyright Law that Relate to Orphan Works 

While U.S. copyright law does not contain an omnibus provision addressing all 

orphan works as such, it does contain a few provisions that permit certain users to make 

certain uses of certain classes of orphan works, and other provisions that reduce the risk 

in using an orphan work. There are thus already some “orphan works provisions” in U.S. 

copyright law, although they are not labeled as such. These provisions include section 

108(h), section 115(b), section 504(c)(2), and the termination provisions (sections 203, 

304(c), and 304(d)).99 These existing laws provide models that may be useful in the 

development of an omnibus orphan works provision. 

 98 H.R. Rep. No. 94-1476, at 136 (1976). 

99 Other provisions in the Copyright Act can permit use of orphan works. For example, statutory

licenses other than section 115 (such as the licenses available under sections 112, 114, and 118) can permit

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

1. Section 108(h) 

Section 108(h) was enacted as part of the Sonny Bono Copyright Term

Extension Act of 1998,100 and has sometimes been referred to as an “orphan works” 

provision.101 Intended to ameliorate the effects that the 20-year extension of term might 

have on libraries and archives in their use of older works, the provision allows libraries 

and archives to reproduce, distribute, display or perform works in the last 20 years of 

their term if certain conditions exist, as spelled out in the subsection: 

 (h)(1) For purposes of this section, during the last 20 years of any term of 

copyright of a published work, a library or archives, including a nonprofit 

educational institution that functions as such, may reproduce, distribute, 

display or perform in facsimile or digital form a copy or phonorecord of 

such work, or portions thereof, for purposes of preservation, scholarship, 

or research, if such library or archives has first determined, on the basis of 

a reasonable investigation, that none of the conditions set forth in 

subparagraphs (A), (B), and (C) of paragraph (2) apply. 

(2) No reproduction, distribution, display, or performance is authorized 

under this subsection if – 

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a 

reasonable price; or 

 use of an orphan work. See 37 C.F.R. §§ 253.9, 260.7, 261.8, 262.8 (2005). Similarly, any of the 

exceptions to copyright – for example those found in section 110 – could permit use of an orphan work. 

The provisions discussed in this Section of the Report are those that bear the closest resemblance to an

orphan works provision, and those that are the most instructive for the drafting of an omnibus orphan works 

provision. 

100 Pub. L. No. 105-298, 112 Stat. 2827 (1998). 

101 The Preservation of Orphan Works Act (“POWA”) was title IV of the Family Entertainment 

and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218, 226 (April 27, 2005). POWA contained a 

single provision, which amended section 108(i). Section 108(i) had provided that the rights of reproduction 

and distribution granted by section 108 do not apply to certain classes of works: musical, pictorial, graphic 

or sculptural works, or motion pictures or other audiovisual works other than audiovisual works dealing

with news. However, section 108(i) also excluded from this rule the reproduction and distribution rights 

granted under section 108(b) (allowing certain reproductions and distributions for purposes of preservation

and security or for deposit for research use in another library or archives) and 108(c) (allowing certain

reproductions solely for the purpose of replacement of a copy or phonogram that is damaged, deteriorating, 

lost or stolen, or if the existing format in which the work was stored has become obsolete). POWA 

extended the exemption to the rights granted under section 108(h): therefore, library reproductions allowed 

under section 108(h) are no longer limited by section 108(i). This provision promotes the preservation of

orphan works because it enables libraries and archives to take advantage of section 108(h) for more classes 

of works (for example, musical works), and those previously excluded classes of works will include many

orphan works.

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

(C) the copyright owner or its agent provides notice pursuant 

to regulations promulgated by the Register of Copyrights that 

either of the conditions set forth in subparagraphs (A) and (B) 

applies. 

(3) The exemption provided in this subsection does not apply to any 

subsequent uses by users other than such library or archives. 

Section 108(h), in other words, allows use of a work without permission by 

libraries and archives if the work is not subject to normal commercial exploitation and is 

not obtainable at a reasonable price. As with the other provisions discussed in this 

section of the Report, section 108(h) can affect both orphan works and non-orphan 

works. It does not require that the owner be non-locatable, and does not require a library 

to conduct a reasonable search for the owner of the work (although the fact of whether 

the library conducted a reasonable search for the owner may figure into the analysis of 

whether the library conducted a reasonable investigation of whether the work was subject 

to normal commercial exploitation or available for a reasonable price). 

Section 108 relies expressly on the concept of reasonableness: the terms 

“reasonable investigation” and “reasonable price” are central to its operation. However, 

section 108(h) defines neither of these terms. Similarly, it does not define the important 

term “normal commercial exploitation.” We could find no case interpreting these terms 

in section 108(h) to date.102

It is also significant that section 108(h)(2)(C) provides a formal way for a 

copyright owner to opt out of the exception (provided that the owner can truthfully state 

that the work is subject to normal commercial exploitation or is available at a reasonable 

price). However, the “opt-out” registry established by section 108(h)(2)(C) has never 

been used in the eight years103 since section 108(h) became law.104

 102 In his dissent in Eldred v. Ashcroft, 537 U.S. 186 (2003), Justice Breyer called section 108(h) a 

“limited” exception, and expressed the view that the term “reasonable investigation” is “open-ended.” Id.

at 252. 

103 The Sonny Bono Copyright Term Extension Act became effective October 27, 1998. 

104 The provision does not provide much incentive for a copyright owner to file such a notice 

before it discovers that one of its works is being used under this subsection. By its terms, it appears that

such a notice can be filed at any time, even after a library or archive begins use of a work it had determined 

to have met the criteria. Once the notice is filed, the work is no longer subject to the exception, and the 

library or archives would have to cease its use under section 108(h). In most cases it would thus seem more 

efficient for a copyright owner to “wait and see” whether a work is being used under section 108(h) rather 

than to file such notices proactively. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

2. Section 115(b) 

The Copyright Act provides owners of copyright certain exclusive rights.105 A 

would-be user of a work that is protected by exclusive rights must obtain a license from 

the owner of those rights prior to using the work, or the use will constitute infringement. 

However, in certain limited circumstances, the Act permits a user to use a copyrighted 

work without a license from the owner of the work, under a so-called “statutory” (or 

“compulsory”) license. Under these licenses, the user ordinarily must pay the owner a 

royalty that is fixed by regulation (or a royalty agreed to by the user and the owner). 

The section 115 statutory license permits any person to distribute phonorecords of 

a nondramatic musical work, including by means of digital phonorecord delivery, when 

phonorecords of that musical work have previously been distributed to the public in the 

United States with the authority of the copyright owner, provided that the person’s 

primary purpose in making the phonorecords is to distribute them to the public for private 

use.106 In order to avail herself of this statutory license, the would-be user must serve a 

notice of her intention to use the work on the copyright owner. The statute provides, 

however, that “[i]f the registration or other public records of the Copyright Office do not 

identify the copyright owner and include an address at which notice can be served, it shall 

be sufficient to file the notice of intention in the Copyright Office.”107 Further, the owner 

of the musical work “must be identified in the registration or other public records of the 

Copyright Office” in order to receive any royalties under the license.108 Thus, a would-be 

user who is not able to locate the owner may make and distribute phonorecords of the 

orphan work according to the terms of the statutory license, provided she satisfies the 

conditions of section 115(b)(1) – and may continue to do so royalty-free until the owner 

 105 See 17 U.S.C. § 106. 

106 There are still more limitations on eligibility, see 17 U.S.C. § 115(a)(1)(i) – (ii), as well as 

various procedural requirements, see 17 U.S.C. § 115(b). 

107 17 U.S.C. § 115(b)(1); accord 37 C.F.R. § 201.18(f)(3). If the Copyright Office’s records do

identify an owner and an address, but the would-be user sends the notice to that address and the notice is 

returned or refused, the user may file the rejected notice with the Copyright Office, along with a statement 

that the notice was sent to the last address listed in the records, but was returned. 37 C.F.R. § 201.18(f)(2). 

108 17 U.S.C. § 115(c)(1).

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

files a registration or other record with the Copyright Office, at which point the work 

would no longer be an orphan work.109

It should be noted that section 115(c)(1)’s bright-line test for the availability of 

the royalty-free license captures non-orphan works as well as orphan works. The test is 

whether the owner’s identity is reflected in the records of the Copyright Office: if it is 

not, the user is not liable for royalty payments. The would-be user’s actual knowledge of 

the owner’s identity is not relevant, so the user may file the notice with the Copyright 

Office even if the user has actual knowledge of the owner’s identity and contact 

information.110 Similarly, the would-be user may file the notice with the Copyright 

Office even if a reasonable search would yield the identity of the owner and the owner’s 

address, yet the information is unknown to the would-be user because the user failed to 

conduct any search other than a search of the records of the Copyright Office. In either 

of these situations, the work in question would not be an orphan work, yet would be 

subject to a royalty-free license pursuant to sections 115(b)(1) and (c)(1). 

Sections 115(b)(1) and (c)(1) do not state expressly that the would-be user must 

conduct a search of the Copyright Office’s records: they state only that the notice may be 

served on the Copyright Office if the records of the Copyright Office “do not identify” 

the owner, and that the owner “must be identified” in the records in order to be entitled to 

royalties. While this might leave open an interpretation that liability for royalties hinges 

on whether the records in fact reflected the information on the date notice was given (i.e., 

regardless of whether the user actually conducted any search of the records to determine 

that fact), the regulations make clear that the would-be user is required to have an actual 

search of the records conducted.111

 109 The legislative history states that the requirement of filing an official document with the 

Copyright Office helps to ensure accurate payment should the owner appear. See H.R. Rep. 94-1476 at

109-110 (1976) (the owner does not receive the royalties until identified in the records of the Copyright 

Office because “proper identification is an important precondition of recovery”). 

110 See 37 C.F.R. § 201.18(f)(4) (providing that, “alternatively,” if the user knows the name and 

address of the owner, the user “may” serve the notice on the owner). 

111 See 37 C.F.R. § 201.18(d)(1)(vi) (the user must include in the notice “an affirmative statement

that with respect to the nondramatic musical work named in the Notice of Intention, the registration records 

of the Copyright Office have been searched and found not to identify the name and address of the copyright

owner of such work.”).

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

The Copyright Office received over 350 notices pursuant to section 115(b)(1) in 

2004 and 380 in 2005.112

3. Section 504(c)(2) Limitation on Damages 

Under section 504(a) and (b), a copyright owner is entitled to elect, in an action 

for infringement, between (a) actual damages plus any additional profits of the infringer 

(minus any overlap between these), or (b) statutory damages. Section 504(c)(1) provides 

the basic range for statutory damages, but section 504(c)(2) provides for adjustments to 

that range in certain circumstances. Where the infringement was willful, section 

504(c)(2) provides for an increase in the upper limit of the range. Conversely, section 

504(c)(2) also provides for reduction of the bottom limit of the range in two 

circumstances: 

[1] In a case where the infringer sustains the burden of proving, and the 

court finds, that such infringer was not aware and had no reason to believe 

that his or her acts constituted an infringement of copyright, the court in its 

discretion may reduce the award of statutory damages to a sum of not less 

than $200. [2] The court shall remit statutory damages in any case where 

an infringer believed and had reasonable grounds for believing that his or 

her use of the copyrighted work was a fair use under section 107, if the 

infringer was: (i) an employee or agent of a nonprofit educational 

institution, library, or archives acting within the scope of his or her 

employment who, or such institution, library, or archives itself, which 

infringed by reproducing the work in copies or phonorecords; or (ii) a 

public broadcasting entity which or a person who, as a regular part of the 

nonprofit activities of a public broadcasting entity . . . infringed by 

performing a published nondramatic literary work or by reproducing a 

transmission program embodying a performance of such a work.113

These provisions have been in the 1976 Act since its inception in 1976,114 and 

have not raised any serious objection, either domestically or internationally. Like many 

of the orphan works provisions proposed by commenters,115 they limit otherwiseavailable infringement remedies based on the user’s knowledge and the reasonableness of 

 112 A small number of these notices did not relate to unidentified owners. 

113 With respect to the first circumstance, section 401(d) denies the “innocent infringer” defense 

where the infringer had access to a copy of the work bearing a copyright notice. 17 U.S.C. § 401(d). 

114 Pub. L. No. 94-553, § 504(c)(2), 90 Stat. 2541, 2585 (1976). The minimum amount in the first

sentence cited was raised from $100 to $200 in 1988. Berne Convention Implementation Act of 1988, Pub. 

L. No. 100-568, 102 Stat. 2853, 2860. 

115 See infra pages 69-92. 

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the user’s beliefs. They reduce, in certain cases, the exposure that inevitably results from 

the uncertainty inherent in the flexible concept of fair use. For example, if the user is an 

employee of a library who is contemplating a use that will infringe a work if it is not fair 

use, but the user has reasonable grounds for believing, and actually does believe, that the 

contemplated use is fair use, the user can go forward with the use without fear of the 

ordinary minimum statutory damage award, which under section 504(c)(1) is $750. 

Section 504(c)(2)’s reduction of the minimum from $750 to zero can benefit the library in 

its planning, especially when multiple uses of multiple works come within this provision. 

This same benefit would apply when the library seeks to use an orphan work, and the 

library reasonably believes that the use is a fair use. 

Section 504(c)(2) can thus directly benefit certain would-be users of orphan 

works (e.g., libraries that contemplate uses for which they have reasonable grounds to 

believe are fair uses). It also provides a useful model for orphan works proposals that 

contemplate a limitation on remedies, because like many of these proposals, section 

504(c)(2) encourages use of works by reducing infringement exposure in certain 

situations in which the user lacks certain information. In the case of section 504(c)(2), 

the information concerns whether the use is infringing; in the case of orphan works, the 

information concerns who the owner is, and whether that owner would consent to use. 

4. Sections 203, 304(c), and 304(d) 

Other provisions of the existing copyright law do not actually permit use of an 

orphan work, but they attempt to address situations similar to the orphan works situation 

– namely, situations in which a person with an interest in a work cannot be located. 

These are the termination provisions. Under section 203, an author of a work (or certain 

members of her surviving family) has an inalienable right to terminate a grant of a 

transfer or license of the copyright in the work (or of any right under a copyright), where 

the transfer was executed on or after January 1, 1978.116 Section 304(c) provides a 

similar right to terminate a transfer of the renewal copyright of a work that was in its first 

or renewal term on January 1, 1978, and section 304(d) provides a similar right to 

terminate a transfer of the additional 20 years of protection provided by the Sonny Bono 

Copyright Term Extension Act of 1998. 

 116 Certain exceptions apply.

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While the right to terminate is inalienable, the provisions require that the 

terminating party serve a notice on the grantee or the grantee’s successor in order to 

effect the termination. Since the grantee or her successor may have become unlocatable 

between the time of the grant and the time prescribed for the notice,117 an author (or other 

terminating party) may not be able to serve the grantee or successor with the required 

notice. In this situation, the regulations provide the following: 

The service provision of section 203, section 304(c) or section 304(d) of 

title 17, U.S.C., whichever applies, will be satisfied if, before the notice of 

termination is served, a reasonable investigation is made by the person or 

persons executing the notice as to the current ownership of the rights being 

terminated, and based on such investigation: 

(i) If there is no reason to believe that such rights have been 

transferred by the grantee to a successor in title, the notice is 

served on the grantee; or

(ii) If there is reason to believe that such rights have been 

transferred by such grantee to a particular successor in title, the 

notice is served on such successor in title.118

The regulation also specifies that “reasonable investigation,” 

[i]ncludes, but is not limited to, a search of the records in the Copyright 

Office; in the case of a musical composition with respect to which 

performing rights are licensed by a performing rights society, a 

‘reasonable investigation’ also includes a report from that performing 

rights society identifying the person or persons claiming current 

ownership of the rights being terminated.119

Finally, the terminating party may serve the grantee or grantee’s successor at an address 

“which, after a reasonable investigation, is found to be the last known address of the 

grantee or successor in title.”120

These regulations are thus similar to section 108(h) and section 115. They 

establish default rules for resolving where the termination notice may be served, and rely 

on the concept of reasonable investigation by the author as a prerequisite to the default 

 117 The time span between a grant and a notice of termination will always be significant: at 

earliest, 25 years after the execution of the grant in the case of section 203, 46 years after the copyright was 

originally secured in the case of section 304(c), and 65 years after the copyright was originally secured in

the case of section 304(d). 

118 37 C.F.R. § 201.10(d)(2).

119 § 201.10(d)(3). 

120 § 201.10(d)(1). 

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rule. As with section 108(h), the term “reasonable investigation” is used but not defined 

– although the regulation does provide certain minima that must be included in a 

reasonable investigation. 

* * * 

The statutory and regulatory provisions discussed in this Section of the Report 

either reduce (or eliminate) the legal sanctions against certain limited uses of orphan 

works, or address situations similar to the orphan works situation. In either instance, they 

provide useful models for crafting an omnibus orphan works provision. 

C. Other Relevant Legal Considerations 

The discussion above indicates that the current Copyright Act does not contain a 

provision designed to address the orphan works situation that is the subject of this study. 

While some provisions, like section 108(h), might address the question for some users in 

certain situations, in general a user faced with an orphan works situation will not find a 

specific section or other provision of the Act on which he might rely to make use of the 

work. In Section VI, we recommend a legislative amendment that would more 

comprehensively address the orphan works situation. 

Nevertheless, we believe that the focus on developing legislative text to address 

orphan works should not obscure the fact that the Copyright Act and the marketplace for 

copyrighted works provide several alternatives to a user who is frustrated by the orphan 

works situation. Indeed, assessing whether the situations described in the comments were 

true orphan works situations was difficult, in part because there is often more than meets 

the eye in a circumstance presented as an orphan works problem. Many times in the 

comments there was not enough information as to whether the user considered all of the 

alternative legal solutions that might be applicable to her intended use of the work. 

For purposes of developing a legislative solution we have defined the orphan 

works situation to be one where the use goes beyond any limitation or exemption to 

copyright, such as fair use. However, in practice, most cases will not be so neatly 

defined, and a user may have a real choice among several alternatives that allow her to go 

forward with her project: making noninfringing use of the work, such as by copying only 

elements not covered by copyright; claiming fair use; seeking a substitute work for which 

she has permission to use; or a combination of these alternatives. Indeed, the Authors 

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Guild provided survey data that users confronted by the orphan works situation make 

exactly these types of choices.121 In this section we describe some of those alternatives 

and how they might be applicable to different scenarios described in the comments. 

1. Section 102(b) -- The Idea/Expression Dichotomy 

Section 102(b) embodies the idea/expression dichotomy in copyright law, making 

clear that “[i]n no case does copyright protection for an original work of authorship 

extend to any idea, procedure, process, system, method of operation, concept, principle, 

or discovery, regardless of the form in which it is described, explained, illustrated, or 

embodied in such work.”122 In other words, copyright extends only to the expression 

contributed by the author, not to the ideas and facts contained in the work. This 

distinction is critical to allowing subsequent creators and users build on an existing work 

by taking its ideas and facts to create new works of their own, and is one of the 

“traditional contours” of copyright that helps it to be compatible with and supportive of 

the First Amendment’s guarantee of freedom of expression.123 Indeed, the public domain 

is enriched immediately by the creation of copyrighted works because those works reveal 

and explain ideas that are immediately available for use without copyright restriction, 

even though the copyright term will not expire for decades.124

The idea/expression dichotomy is especially important for works of non-fiction, 

such as historical and news accounts, and more “utilitarian” works like computer 

programs, textbooks, manuals and the like. Much of the value in these works is the facts, 

ideas, systems, and methods described in them, not necessarily the particular expression 

embodied therein. While copyright prevents a user from simply duplicating the exact 

words of the author, it does allow that user to restate the ideas, methods, concepts and 

other non-protected elements. In most cases it is not difficult for a user to come up with a 

different expression of the same underlying facts or concepts without borrowing any 

 121 Authors Guild (R135) at App. p. 13 (indicating that 47% of the time the user “made use of the

work in a way that [she] believed was consistent with fair use rules,” 21% of the time the user “paraphrased 

the text,” 36% of the time the user “altered [her] work to avoid the copyrighted work entirely,” found a 

different work to use, or a combination of these choices). 

122 17 U.S.C. § 102(b). 

123 Eldred v. Ashcroft, 537 U.S. 186, 219-21 (2003). 

124 Id. at 219 (“[E]very idea, theory, and fact in a copyrighted work becomes instantly available for 

public exploitation at the moment of publication.”). 

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protected expression from the author. It is for this reason that such copyrights are often 

referred to as “thin” copyrights. 

Computer programs are good examples of copyrighted works for which the 

idea/expression dichotomy is highly relevant. Under section 102(b), copyright does not 

extend to the functional aspects of a computer program, only the expression contained 

therein, which includes the literal source and object code, plus any structure, sequence 

and organization that is original. Someone can develop a computer program that 

performs the same functions as another copyrighted program but without taking any of 

the protected expression contained in that underlying work. 125

We received numerous comments from individuals who cited computer programs 

as examples of orphan works, typically where the company that produced the software 

had gone out of business and the copyright owner of the program could not be located.126 

Such software was often termed “abandonware.” In some examples the user could have 

(and in fact did) write his own code to interface with the existing work or duplicate its 

features and functions.127 Similarly, other commenters described their efforts to compile 

and maintain documentation and manuals for older computer hardware and software.128 

Manuals and documentation, like the computer programs, are full of facts and ideas not 

subject to copyright which a user can paraphrase, excerpt or summarize without 

copyright liability. 

To be sure, the line between idea and expression is not fixed and bright, but a gray 

area that requires judgment and therefore entails uncertainty as to whether the user has 

taken only ideas and concepts. Moreover, a user who simply wishes to reproduce works 

wholesale into her works, even works with a “thin” copyright, is likely reproducing some

copyrighted expression that would require permission or exemption. Nevertheless, the 

doctrine is real and has been successfully invoked by many defendants in copyright 

 125 See, e.g., Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807 (1st Cir. 1995), aff’d by an equally

divided court, 516 U.S. 233 (1996); Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). 

126 See Mahan (233). 

127 See Andre (315) (describing how when owner of portions of code cannot be found, the code is 

rewritten); Berry (608) (describing how users of a typesetting program “TeX” rewrite code for “add-on 

packages” when the owner of that code cannot be found). 

128 See Jones (157). 

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cases.129 In fact, the uncertainty over the application of the idea/expression dichotomy is 

faced by both copyright owners and copyright users, and thus users may benefit from the 

uncertainty if it prompts a copyright owner not to bring action against a work that 

attempts to copy only idea and not expression. A user in the orphan works situation 

should consider whether the idea/expression dichotomy might allow her to go forward 

without permission from the absent copyright owner.130 

2. Section 107 -- Fair Use 

Section 107 embodies the “fair use” doctrine in copyright law, another common 

law doctrine that the Supreme Court has referred to as a “traditional contour” of 

copyright.131 It provides an essential safeguard to ensure that copyright does not stifle 

uses of works that enrich the public, such as “criticism, comment, news reporting, 

teaching, scholarship, or research.”132 Along with the idea/expression dichotomy, fair 

use is one of copyright’s important First Amendment accommodations.133

Section 107 does not define fair use; rather, it sets out a list of nonexclusive 

factors that a court is to consider in determining whether a particular use is fair. The 

intent of Congress in the 1976 codification was to preserve the existing common law 

development of the doctrine and allow courts after 1976 to continue the process of 

assessing fair use claims on a case-by-case basis.134

As with the idea/expression dichotomy, the case-by-case nature of fair use may 

generate uncertainty as to its application in a particular circumstance. In the Notice of 

 129 Indeed, as Judge Patel of the Northern District of California recently concluded, that

idea/expression distinctions “require a certain degree of judicial interpretation is not merely permissible – it 

is a bedrock assumption of our common law system.” See Aharonian v. Gonzales, No. C 04-5190 MHP, 

2006 U.S. Dist. LEXIS 13 at *18 (N.D. Cal. Jan. 3, 2006).

130 As described in more detail in Section VI, our recommendation to address orphan works is 

fully compatible with existing doctrines like the idea/expression dichotomy and other copyright limitations. 

A user can rely on section 102(b) as a first line of defense, and if she is unsuccessful in that argument can 

then invoke the limitations on remedies provided in our recommendation, so long as she meets the 

requirements specified therein. 

131 Eldred, 537 U.S. at 221. 

132 17 U.S.C. § 107. 

133 Eldred, 537 U.S. at 219. 

134 See H.R. Rep. 94-1476, at 66 (1976) (“Beyond a very broad statutory explanation of what fair

use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular 

situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair 

use, not to change, narrow, or enlarge it in any way.”). 

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Inquiry, we observed that users had expressed concern over the uncertain nature of fair 

use and the idea/expression dichotomy, and that this uncertainty contributes to a user’s 

hesitation in using an orphan work. Some commenters in this proceeding confirmed that 

view,135 although there were some who described situations that seemed to fall squarely 

within classic fair use situations that should not have given those users any pause in 

whether they could use the work.136

Note, however, that as with section 102(b), uncertainty in the application of fair 

use cuts both ways, and may prompt a copyright owner not to pursue an infringement 

claim against a user for fear that the use might be ruled fair by a court. Moreover, the fair 

use doctrine has a long pedigree and precedents to help inform users as to what types of 

uses might be fair or not, and one can obtain guidance from these precedents. For 

example, a “Best Practices in Fair Use” report was recently developed by groups 

involved in documentary filmmaking to help give guidance to such users about the scope 

and limits of fair use in that context.137

We stress that the presence of an orphan works provision should not act as a 

substitute or replacement for fair use. The user of an orphan work should consider 

whether her use might fall within fair use, or curtailing her use in a way to have it more 

clearly fall within the exemption, in addition to or in lieu of reliance on any orphan works 

provision. 

3. Other Exemptions 

Many comments also described situations where a proposed use of an orphan 

work might be subject to other exemptions in the Copyright Act. For example, use of an 

orphan work by a library or archive might be covered by section 108, which contains 

 135 College Art Association (647) at 5. 

136 See, e.g., Lopresti (115) (author of a book about the Pacific Northwest who wishes to quote 

many sources appears to be making transformative fair use of works for scholarship and commentary

purposes); Heitmann (182) (novelist and playwright afraid to quote someone for fear of being sued, but

such use seems well within fair use protection for commentary and criticism, particularly in transformative

works); and McPherson (325) (author of an article on abilities and foibles of old computer hardware 

wanted to use manuals, specifications, guides and articles with unlocatable owners, apparently in traditional 

fair use scholarship, commentary and research ways). 

137 American University Center for Social Media, Documentary Filmmakers’ Statement of Best 

Practices in Fair Use (Nov. 18, 2005), available at

http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf. 

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other exemptions and limitations related to preservation, replacement and patron use, in 

addition to the “orphan works” provision in section 108(h) described above.138 Other 

commenters presented scenarios that might fall within one of the educational and 

religious exemptions in section 110.139 Section 117 permits owners of a copy of a 

computer program to make a copy of and adaptation to the program in certain 

circumstances which might be applicable to the types of situations involving 

“abandonware” described above.140

4. Determining the Copyright Status of the Work 

Another common question raised by many of the scenarios presented to us is 

whether the works described were in fact in the public domain and thus needed no 

permission for use. For example, one project described a film project involving the 

history of postcards from the 1890s to 1960s, which on the surface appears to involve 

many works that are now in the public domain.141 Other examples include the use of a 

diary from a Civil War soldier142 and sheet music from a Gilbert & Sullivan musical.143 

As noted above, we recognize that determining whether an older work has fallen into the 

public domain under the provision of the 1909 Act can in specific cases be difficult and 

complex. In most cases, however, one can quickly ascertain whether an older work is 

still under copyright. The Copyright Office’s Circular 22, “How to Investigate the 

Copyright Status in a Work”, provides the starting point for such an investigation.144

 138 17 U.S.C. § 108. In 2005, the Section 108 Study Group was formed to examine whether and 

how that section needs to be amended to account for changes wrought by digital technology. Sponsored by

the Library of Congress and the Copyright Office, the Study Group hopes to have recommendations 

published in 2006. See http://www.loc.gov/section108/ to follow the workings of this group.

139 See Collins (219) (describing use of various musical works in religious services that might be

covered by the section 110(3) exemption for performance in such settings); Deutsch (460) (describing

desire to have musical recordings required for a college course made available to students via the Internet, 

which may be covered by sections 110(1) and 110(2)).

140 17 U.S.C. § 117(a)(1).

141 Goodman Associates (46). 

142 McGowan (218).

143 Willisson (430). 

144 See supra note 49. 

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5. Substitutes for the Work 

A user faced with an orphan work might be in the position to consider whether he

could replace the orphan work with another work for which he has permission to use. Of 

course, in many cases the nature of the project or artistic choice might demand use of that 

particular orphan work, but some comments indicated that alternative works can be used. 

The public domain can be source of such alternative works. For example, one 

commenter described how she was preparing a website that chronicled the life of Queen 

Charlotte of England but was not able to obtain permission to use a copyrighted image of 

a portrait of the Queen. Instead, she used a public domain black-and-white lithograph 

from a 1911 book instead. Similarly, she received no response to a request to use 

photographs of royal residences from a book published in the 1970s, so she instead relied 

on public domain engravings of those residences from 1819.145

The marketplace can also offer substitutes for an orphan work. For example, 

photography and illustration archives offer images that might meet the user’s needs. 

Many works are made available on the Internet under a Creative Commons license that

generally permit a wide range of re-use in new projects.146 One commenter described 

how his frustration with obtaining permissions for sound and images for use in 

developing educational software led him to create his own sounds and images and offer 

them to other users via free licenses.147 If the orphan work is not indispensable to the 

user’s project, a substitute work may be the most efficient solution. 

* * * 

The purpose of this subsection is to place the orphan works issue in its practical 

context, where the process of creating and making works available to the public is usually 

a complex and dynamic situation with few black-and-white choices. A robust and 

effective solution to the orphan works problem must be developed with that full picture in 

mind. It is important to remember that the current law and marketplace can offer the 

orphan work user a meaningful and effective solution which, in many cases, does not 

 145 Wessel (567). 

146 See Save the Music/Creative Commons (643) (describing Creative Commons licenses). 

147 Hart (278). 

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appear at first glance. It is our hope that the orphan works amendment we recommend 

becomes another effective solution available to users in the orphan works situation. 

D. International Context 

Development of any omnibus orphan works provision must keep in mind the 

United States’ international law obligations that relate to copyright. Those obligations 

are found primarily in the major multilateral treaties dealing with copyright: the Berne 

Convention for the Protection of Literary and Artistic Works (Paris 1971) (“Berne”), the 

World Trade Organization (“WTO”) Agreement on the Trade-related Aspects of 

Intellectual Property Rights (1994) (“TRIPS”)148; the WIPO149 Copyright Treaty (1996) 

(“WCT”); and the WIPO Performances and Phonograms Treaty (1996) (“WPPT”). 

These treaties require, among other things, signatory countries to provide certain 

minimum copyright rights to authors (and right holders) who are nationals of other 

signatory countries. They also contain rules that govern the acquisition of those rights, 

the scope of any exceptions to those rights, and the remedies that must be afforded to 

right holders. 

It is possible for the United States to comply with these obligations by imposing 

conditions that might violate a treaty only on United States works and not on foreign 

works, as is done with the requirement that a work be registered prior to suit for 

copyright infringement in section 411(a).150 We do not believe such an approach should 

be taken with orphan works, for several reasons. First, excluding foreign works from the 

orphan works system would exclude a large class of works for which locating the 

copyright owner is often very difficult. Second, introducing distinctions between United 

States and foreign works adds complexity to copyright law that should be avoided. 

Third, that approach discriminates against United States copyright owners and their 

works. Finally, as described in Section VI, we believe our recommendation is fully 

consistent with treaty obligations. 

 148 See supra note 96. 

149 “WIPO” is an acronym for World Intellectual Property Organization.

150 17 U.S.C. § 411(a). 

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1. Formalities 

Berne has long imposed the rule that “[t]he enjoyment and the exercise” of the 

rights guaranteed by Berne “shall not be subject to any formality . . . .”151 The concept of

“formalities” is flexible: 

Formalities are any conditions or measures – independent from those that 

relate to the creation of the work (such as the substantive condition that a 

production must be original in order for it to qualify as a protected work) 

or the fixation thereof (where it is a condition under national law) – 

without the fulfillment of which the work is not protected or loses 

protection. Registration, deposit of the original or a copy, and the 

indication of a notice are the most typical examples.152

The TRIPS Agreement incorporates this rule: it is thus part of the United States’ WTO 

obligations as well as a Berne obligation.153 Finally, WCT requires all parties to comply 

with (among other things) Berne Article 5(2), and WPPT expressly bans formalities.154

For many years, U.S. copyright law did condition copyright protection on 

compliance with the very sort of formalities Berne prohibited – registration, deposit of 

copies, and notice155 – and thus did not conform to the Berne rule. During this period, the 

United States was not a party to Berne. However, in 1988, the United States acceded to 

Berne and passed the Berne Convention Implementation Act (“BCIA”).156 Under the 

 151 Berne art. 5(2). The provision of Berne was added at the 1908 Berlin revision conference of

Berne. Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-

1986, 219-20, 222 (1987); Mihaly Ficsor, Guide to the Copyright and Related Rights Treaties Administered

by WIPO, ¶ BC-5.5, at 41 (2003).

152 Ficsor, supra note 151, ¶ BC-5.7 at 41; accord Ricketson, supra note 151 at 222 (formalities 

are “everything which must be complied with in order to ensure that the rights of the author with regard to 

his work may come into existence” (quoting the German delegate at the 1884 Diplomatic Conference)). 

153 See TRIPS art. 9(1). 

154 See WCT art. 1(4); WPPT art. 20. 

155 See, e.g., 17 U.S.C. §§ 10 (copyright may be secured by publication with notice), 12

(“Copyright may also be had of the works of an author, of which copies are not reproduced for sale, by the 

deposit, with a claim of copyright, [of certain copies]”); 13 (requiring prompt deposit of copies of all works

in which copyright was secured pursuant to § 10), 14 (if the copies required by § 13 are not deposited, the 

Copyright Office may require the proprietor of the copyright to deposit them, and if the proprietor does not

the proprietor shall be liable for a fine, “and the copyright shall become void”), 19 (prescribing form of

notice) (1975). 

156 See supra note 94. 

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BCIA (and under current law), neither registration nor publication with notice is required 

for copyright to subsist in a work.157

Any legislative solution to the orphan works problem, therefore, must not require 

an author to comply with formalities if failure to comply with those formalities would 

result in the author becoming unable to enjoy or exercise the copyright in the work. A 

prohibited formality could prevent the formation of rights, or divest existing rights later 

in the life of the copyright. For example, if an orphan works statute required that, 

promptly after creation or publication, all works be registered with the Copyright Office 

and that all unregistered works be deemed orphan works, which automatically and 

permanently fall into the public domain (resulting in a complete loss of rights for the 

author), Berne’s rule against formalities would be implicated, and violated. If an orphan 

works statute provided that works not bearing a certain prescribed notice (for example a 

statement that the author does not intend for the work to be treated as an orphan work) be 

deemed orphan works and automatically and permanently fall into the public domain, the 

rule against formalities would also be violated. A requirement that the author file a 

renewal registration midway through the minimum term of protection mandated by Berne 

in order to enjoy the remainder of the term would also violate the rule. Finally, Berne 

forbids a situation in which a formality must be complied with in order to bring a legal 

proceeding to enforce the copyright: in this case, the “exercise” of the right is being 

conditioned on compliance with the formality.158 Each of these limitations must be kept 

in mind when considering legislative solutions to the orphan works problem. 

2. The “Three-Step Test”

In addition to the ban on formalities imposed by the international copyright

system, the other major obligation of that system relates to the scope of limitations and 

exceptions to copyright a country can enact. Under Berne, different limitations and 

exceptions are allowed for each substantive right. For example, members may provide 

limitations and exceptions to the reproduction right only “in certain special cases, 

provided that such reproduction does not conflict with a normal exploitation of the work 

 157 See 17 U.S.C. § 408(a) (registration “is not a condition of copyright protection”) (2005). 

158 See Ricketson, supra note 151, at 223. 

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and does not unreasonably prejudice the legitimate interests of the author.”159 The Berne 

public performance right, on the other hand, is subject to exceptions under the “minor 

exceptions” or “minor reservations” doctrine, which allows certain users to make certain 

de minimis musical performances without the permission of the copyright owner: for 

example, concerts by military bands.160

The Berne reproduction exception test has come to be known as the “three-step 

test”: the first step being “certain special cases,” the second, “does not conflict with a 

normal exploitation of the work,” and the third, “does not unreasonably prejudice the 

legitimate interests of the author.”161 Although originally applicable only to the 

reproduction right under Berne, the test has now come to apply, through TRIPS, 

“horizontally” to copyright limitations and exceptions generally.162 Under TRIPS, the 

three-step test is made applicable to all exclusive rights.163 The WCT likewise provides 

that any exceptions to the new rights granted under the WCT will be subject to the threestep test, and further provides that parties to the WCT, when applying Berne, will confine 

any limitations of, or exceptions to, Berne rights to those that pass the three-step test.

164 

Similarly, WPPT provides that any exceptions to the new rights granted under the WPPT 

will also be subject to the three-step test, and further provides that parties to the WPPT 

will provide the “same kinds of limitations or exceptions with regard to the protection of

performers and producers or phonograms as they provide for ... in connection with the 

protection of copyright in literary and artistic works.”165 Finally, the WCT and WPPT 

each contain Agreed Statements that explain the applicability of Berne exceptions to the 

rights protected by those treaties: 

 159 Berne art. 9(2). 

160 Ficsor, supra note 151, ¶ BC-11.12 to BC-11.15, at 70. 

161 See generally Standing Committee on Copyright and Related Rights, WIPO Study on

Limitations and Exceptions of Copyright and Related Rights in the Digital Environment 20-27 (2003) 

(WIPO Doc. No. SCCR/9/7). 

162 Id. at 65. 

163 See TRIPS art. 13 (“Members shall confine limitations or exceptions to exclusive rights to

certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably

prejudice the legitimate interests of the right holder.”). 

164 See WCT art. 10. 

165 WPPT art. 16. 

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It is understood that the provisions of Article 10 permit Contracting 

Parties to carry forward and appropriately extend into the digital 

environment limitations and exceptions in their national laws which have 

been considered acceptable under the Berne Convention. Similarly, these 

provisions should be understood to permit Contracting Parties to devise 

new exceptions and limitations that are appropriate in the digital network 

environment. 

It is also understood that Article 10(2) neither reduces nor extends the 

scope of applicability of the limitations and exceptions permitted by the 

Berne Convention.166

Guidance as to the meaning of each of the three steps in the test can be found in 

the panel report in the WTO trade dispute concerning section 110(5) of the U.S. 

Copyright Act.167 In that dispute, the European Union argued that the exception to 

copyright protection found in section 110(5) (as amended in 1998 by the Fairness in 

Music Licensing Act)168 violated TRIPS’ requirement that parties comply with Berne.169 

The panel held in favor of the European Union with regard to section 110(5)(B), stating 

that it violated TRIPS Article 13 and Berne.170 In the course of its holding, the panel 

made numerous statements regarding the meaning of TRIPS Article 13’s three-step test, 

many of which are instructive for an orphan works regime. 

“Certain Special Cases”: The panel held that the term “certain” requires that “an 

exception or limitation in national legislation must be clearly defined. ... However, there 

is no need to identify explicitly each and every possible situation to which the exception

could apply, provided that the scope of the exception is known and particularised.”171 

The term “special” requires that the exception or limitation “must be limited in its field of

application or exceptional in its scope. In other words, an exception or limitation should 

be exceptional in [a] quantitative as well as a qualitative sense. This suggests a narrow 

 166 WCT Agreed Statement Concerning Article 10; WPPT Agreed Statement Concerning Article 

16 (incorporating same by reference). 

167 See World Trade Organization, United States – Section 110(5) of the US Copyright Act, Report

of the Panel (“WTO 110(5) Panel Report”) (June 15, 2000) (WTO Doc. No. WT/DS160/R). 

168 Pub. L. No. 105-298, 112 Stat. 2827, 2830 (Oct. 27, 1998). 

169 See WTO Panel Report, supra note 167, at ¶¶ 3.1 – 3.2. 

170 Id. ¶ 7.1(b). 

171 Id. ¶ 6.108. 

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scope as well as an exceptional or distinctive objective.”172 While the legislative 

objective must be distinct, it is not necessary to show that it was legitimate in a normative 

sense.173

“Do Not Conflict with a Normal Exploitation of the Work”: The panel held that

the term “exploitation” means “the activity by which copyright owners employ the 

exclusive rights conferred on them to extract economic value from their rights to those 

works.”174 “Normal” exploitation “clearly means something less than full use of an 

exclusive right.”175 Each exclusive right should be judged individually when considering 

whether a limitation or an exception conflicts with a normal exploitation of a work.176 

Uses conflict with a normal exploitation of the work when the owner would ordinarily 

expect to receive compensation for the uses, but also when “uses, that in principle are 

covered by that right but exempted under the exception or limitation, enter into economic 

competition with the ways that right holders normally extract value from that right to the 

work (i.e., the copyright) and thereby deprive them of significant or tangible commercial 

gains.”177 Finally, consideration of potential as well as actual economic effects of the 

exception or limitation is appropriate in some circumstances.178

“Do Not Unreasonably Prejudice the Legitimate Interests of the Right Holder”: 

The panel held that an “interest” is a legal right to a property, or to use or benefit from a 

property, but also includes more generally “something that is of some importance to a 

natural or legal person.”179 The term “legitimate” means that the interest must be a 

legally valid interest, but also must be “justifiable in the light of the objectives that 

 172 Id. ¶ 6.109. 

173 Id. ¶ 6.112; but cf. Ricketson, supra note 151, at 482 (construing the three-step test of Berne 

Article 9(2) and stating that “special” means that the exception or limitation “is justified by some clear 

reason of public policy or some other exceptional circumstance”). 

174 WTO 110(5) Panel Report ¶ 6.165. 

175 Id. ¶ 6.167. 

176 Id. ¶ 6.173. 

177 Id. ¶¶ 6.176, 6.183; but cf. Ricketson, supra note 151, at 483 (the three-step test of Berne 9(2)

does not ban uses “which do not form part of [the author’s] normal mode of exploiting the work – that is, 

uses for which he would not ordinarily expect to receive a fee – even though they fall strictly within the 

scope of his reproduction right”). 

178 WTO 110(5) Panel Report ¶¶ 6.185 – 188. 

179 Id. ¶ 6.223. 

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underlie the protection of exclusive rights.”180 Finally, “prejudice to the legitimate 

interests of right holders reaches an unreasonable level if an exception or limitation 

causes or has the potential to cause an unreasonable loss of income to the copyright 

owner.”181

While the panel’s statements are not necessarily conclusively authoritative, they 

are at least evidence of the manner in which a future WTO panel might interpret TRIPS 

Article 13, and may also influence other decisionmakers. 

3. Berne Provisions Related to Remedies 

Berne requires, as a base-line minimum, certain substantive rights (for example, 

the rights of reproduction, public performance, adaptation, and broadcasting) but Berne 

does not provide many rules related to the enforcement of those rights.182 It requires such 

things as “national treatment” for works protected under the Convention183 and a 

presumption of authorship in infringement actions,184 but in terms of specific remedial 

requirements provides only a few rules related to seizure of infringing copies.185 

Generally, “the means of redress afforded to the author to protect his rights, shall be 

governed exclusively by the laws of the country where protection is claimed.”186 

Therefore, analysis of whether an orphan works provision complies with Berne will, 

generally, not center on whether the provision contradicts a requirement for a specific

 180 Id. ¶ 6.224. 

181 Id. ¶ 6.229. 

182 See Paul Goldstein, INTERNATIONAL COPYRIGHT: PRINCIPLES, LAW AND PRACTICE § 5.6 

(2001). 

183 Berne art. 5(1). National treatment requires that, with respect to works protected under Berne, 

an author enjoys the same rights in any Berne country as the nationals of that country enjoy (as well as the 

minimum rights enumerated by Berne). 

184 Id. art. 15(1) (“In order that the author of a literary or artistic work protected by this 

Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled 

to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to

appear on the work in the usual manner.”)

185 Id. arts. 16 (“(1) Infringing copies of a work shall be liable to seizure in any country of the 

Union where the work enjoys legal protection. (2) The provisions of the preceding paragraph shall also 

apply to reproductions coming from a country where the work is not protected or has ceased to be

protected. (3) The seizure shall take place in accordance with the legislation of each country.”); 13(3) 

(recordings made pursuant to the compulsory license in Article 13 “and imported without permission from

the parties concerned in the country where they are treated as infringing recordings shall be liable to

seizure.”). 

186 Id. art. 5(2); see also id. art. 6bis(3). 

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form of remedy; rather, it will be center on whether the provision significantly 

undermines any of the minimum required rights, and, if it does, whether it comes within 

one of the acceptable exceptions. 

4. TRIPS Provisions Related to Remedies 

Unlike Berne, TRIPS contains (in Part III) numerous provisions expressly

dedicated to enforcement of copyright (as well as other intellectual property rights).187 

Under TRIPS, World Trade Organization Members are required to “make available to 

right holders civil judicial procedures concerning the enforcement of” copyright and 

certain other intellectual property rights,188 and to “provide for criminal procedures and 

penalties to be applied at least in cases of wilful . . . copyright piracy on a commercial 

scale.”

189 These procedures must be “available under [Members’] law so as to permit 

effective action against any act of infringement of intellectual property rights covered by 

this Agreement, including expeditious remedies to prevent infringements and remedies 

which constitute a deterrent to further infringements.”190 These procedures must be “fair 

and equitable.”191 

The civil judicial procedures must satisfy numerous procedural and evidentiary 

minima.

192 Regarding injunctions, TRIPS requires that the “judicial authorities . . . have 

the authority to order a party to desist from infringement.193 The judicial authorities 

must also have “the authority to order the infringer to pay the right holder damages 

adequate to compensate for the injury the right holder has suffered because of an 

infringement of that person’s intellectual property right by an infringer who knowingly, 

 187 See TRIPS arts. 41- 61. See generally Ficsor, supra note 151, at 11 (“[T]he TRIPS Agreement 

includes two new elements of historical importance, which had been missing from the international system

of intellectual property protection; namely, first, its Part III (Articles 41 to 61) contains detailed norms on

enforcement of intellectual property rights, and, second, it extends the efficient WTO dispute settlement

system to intellectual property rights . . . .”); Goldstein, supra note 182, §§ 5.6.1. – 5.6.3.; Daniel Gervais, 

The TRIPS Agreement: Drafting History and Analysis 195-235 (1998). 

188 TRIPS art. 42. 

189 Id. art. 61. 

190 Id. art. 41. 

191 Id. arts. 41(2). 

192 Id. arts. 41 – 43. 

193 Id. art 44(1). This authority is not required where the protected subject matter was “acquired or 

ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject 

matter would entail infringement of an intellectual property right.” Id. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

or with reasonable grounds to know, engaged in infringing activity.”194 TRIPS mandates 

other powers for the judicial authorities as well, including the power to order “provisional 

measures” (i.e. emergency measures taken to prevent an infringement or to preserve 

evidence of an infringement).195 

For criminal actions, TRIPS mandates deterrent sentences of imprisonment and/or 

monetary fines, and, “in appropriate cases,” seizure, forfeiture and destruction of the 

infringing goods and “any materials and implements the predominant use of which has 

been in the commission of the offence.”196

Finally, TRIPS includes numerous requirements related to seizure by the customs 

authorities of infringing goods.197

Therefore, analysis of an orphan works provision under TRIPS must include an 

analysis not only of whether the provision complies with the minimum rights and 

allowable exceptions in Part II of TRIPS, but also an analysis of whether the remedies 

provided to the owner of the orphan work comport with the enforcement provision in Part 

III of TRIPS (unless the orphan works provision comes within a permissible exception to 

copyright, in which case the enforcement provisions are inapplicable). 

5. WIPO Internet Treaties Provisions Related to Remedies 

WCT and WPPT contain identical provisions that require signatory countries to 

“ensure that enforcement procedures are available under their law so as to permit 

effective action against any act of infringement of rights covered by this Treaty, including 

expeditious remedies to prevent infringements and remedies which constitute a deterrent 

to further infringements.”198 Because these provisions mimic TRIPS Article 41, and 

because TRIPS provides much greater additional detail, as a practical matter compliance 

with the WCT and WPPT enforcement provisions will be subsumed within compliance 

 194 Id. art. 45(1). The judicial authorities must also be authorized to order the infringer to pay the 

right holder’s expenses, which may include appropriate attorney fees; judicial authorities may also be

authorized to order recovery of profits and/or payment of pre-established damages. Id.

195 Id. arts 46-48, 50. 

196 Id. art. 61. 

197 Id. arts. 51-60. 

198 WCT art. 14(2); WPPT art. 23(2).

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with TRIPS, and an orphan works provision that complies with TRIPS will almost 

certainly comply with WCT and WPPT. 

* * * 

In considering legislative solutions to the orphan works problem it is important to 

keep in mind the requirements of the international instruments to which the United States 

has agreed: exercise and enjoyment of a copyright right cannot be conditioned on a 

formality, any exceptions or limitations on copyright must conform to the three-step test, 

and the effect on the owner’s remedies must comply with the various remedy rules. 

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V. Description of Proposed Solutions 

This Section of the Report summarizes the solutions proposed in the public 

comments received in response to the orphan works Notice of Inquiry, dated January 26, 

2005 (the “NOI”).199 It is not a comprehensive account of every solution proposed in the 

comments: rather, it is designed to serve as a narrative summary of all of the major 

issues raised. 

The public comments contained a great variety of proposed solutions. These 

solutions can be grouped into four categories: 

• Solutions that already exist under current law and practice. These 

were usually noted only in passing; commenters (even 

commenters opposed to any orphan works provision) did not take 

the position that the existing law is sufficient to solve the orphan 

works problem. 

• Non-legislative solutions. An example of a solution in this 

category is a proposal for improved databases for locating owners 

of works. These solutions were also usually noted only in passing, 

and were not advanced as sufficient to fix the problem.

• Legislative solutions that involve a limitation on remedies when a 

user uses an orphan work. The most substantive comments fell 

into this category, and most of the comments by professional 

organizations or academics fell into this category.

• Other legislative solutions. Examples of proposed solutions in this 

category are deeming all orphaned works to be in the public 

domain, or changing the tax or bankruptcy codes to reduce the 

factors that cause orphan works to come into existence in the first 

place. 

Additional detail concerning these four categories is provided below. 

A. Existing Solutions 

1. Statutes and Regulations 

A few commenters noted some of the existing solutions discussed in Section IV, 

including sections 108(h),200 115(b),201 302(e),202 and 504(c).203 They also noted that 

 199 Both the initial comments and the reply comments are summarized. Citations to some of the 

comments are provided in the footnotes, but these are illustrative, not comprehensive, i.e., not every 

comment that supported the position noted is cited. In the citation, the name of the commenter is followed 

by the number assigned to the comment on the U.S. Copyright Office’s website. The letter “R” before the 

number indicates a reply comment. 

200 Kernochan Center for Law, Media and the Arts, Columbia University School of Law

(“Kernochan”) (666); Consortium of College & University Media Centers (“CCUMC”) (667); Library of

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certain statutory licenses other than section 115 can also permit use of orphan works,204

and that the statute of limitations in section 507(b) would make damages unavailable 

against an orphan work user (or any other user) following three years after the claim of 

infringement accrued.205 As noted above, however, essentially no commenters took the 

position that existing solutions were adequate to solve the orphan works problem. 

B. Non-Legislative Solutions 

Some commenters proposed solutions that would not require any legislative 

change. A significant number argued that the orphan works problem would be improved 

if the Copyright Office’s pre-1978 records were made available on-line, in the manner in 

which its post-1978 record are.206 Other commenters had even more ambitious 

suggestions for the Copyright Office: for example, they recommended that the Copyright 

Office: establish a database of corporate mergers, so ownership of works made for hire 

can be traced more easily;207 digitize Copyright Office deposits and place thumbnail 

images of them on-line;208 and provide a lineage of ownership for every copyright.209 

Other commenters recommended new databases that might or might not be operated by 

the Copyright Office: for example, they advocated publication of lists of all works as 

they were about to fall into the public domain;210 and a database of all works in the public 

domain.211

 Congress (“LOC”) (630) at 2, 8; Stanford University Libraries (“Stanford”) (457 & R111) (proposing

changes to section 108(h)). 

201 Recording Industry Association of America (“RIAA”) (687). 

202 Field (34); College Art Association (“CAA”) (647) at 31 n.83; LOC (630); Kernochan (666). 

203 The J. Paul Getty Trust, The Metropolitan Museum of Art, and the Solomon R. Guggenheim

Foundation (“Getty”) (610). 

204 RIAA (687) (noting that orphan work use is possible under sections 112 and 114). See also 

supra, note 99.

205 The American Society of Composers, Authors and Publishers (“ASCAP”) (R106). 

206 RIAA (687); Motion Picture Association of America (“MPAA”) (646), AIVF (663), 

Kernochan (666); UCLA Film and Television Archive (“UCLA”) (638).

207 Kernochan (666). 

208 The American Society of Media Photographers (“ASMP”) (668). 

209 Bailey (26). 

210 Sincaglia & O’Shell (587). 

211 Grove (331); McKamey (95). 

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Several of the comments focused on ways in which the orphan works problem

could be reduced by changing Copyright Office regulations and/or procedures. 

Commenters recommended that the Copyright Office provide guidance to people who 

want to reduce their rights and/or donate works to the public domain,212 establish a 

system of unique identifiers for all written and visual works (similar to ISBN 

numbers),213 clarify and simplify procedures for registering freelance contributions to 

periodicals,214 provide a suggested clause for wills that would allocate rights in 

copyrights specifically, and send a copy of this clause with every certificate of 

registration.215

As with the comments that focused on existing solutions, however, there was little 

suggestion that the non-legislative solutions, standing alone, would adequately solve the 

orphan works problem. 

C. Legislative Solution: Limitation on Remedies 

Many commenters proposed a limitation-on-remedies solution to the orphan 

works problem. These commenters first addressed the criteria for designating a work as 

an orphan, then discussed the consequences of that designation in terms of the limitations 

on remedies available to a resurfacing owner. 

1. Criteria for Designation of a Work as Orphaned 

a. The Requirement of a Search for the Owner 

Almost every commenter who advocated a limitation-on-remedies system agreed 

that a fundamental requirement for designation of a work as orphaned is that the 

prospective user have conducted a search for the owner of the work, and that the search 

result in the owner not being located. Indeed, this requirement seems to flow naturally 

from the NOI’s definition of orphan work (“copyrighted works whose owners are 

difficult or even impossible to locate”). The commenters differed, however, in the types 

of searches they would consider adequate.216

 212 Ramos (39). 

213 Perkins (205).

214 Science Fiction and Fantasy Writers of America, Inc. (“SFFWA”) (607).

215 SFFWA (607).

216 One commenter, however, argued against even requiring a search. The argument was that it is 

inefficient to require searches for owners of works if the works are in categories of works that are highly 

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“Case-by-case” versus “Formal” Approaches. One overriding issue (noted in the 

NOI) is whether a “case-by-case” standard should apply, or a “formal” standard.217 

Many were in favor of a case-by-case system;

218 one argued that the definition of a 

reasonable search will vary greatly depending on the category of the work, and it will be 

impossible to prescribe ex ante the searches that will be adequate for each category.219 

Another attacked the formal system as a dramatic reversal of the current copyright 

regime, in which an owner need not perform any positive act to preserve his rights; 

under a formal regime, they argued, every owner would as a practical matter be required 

to keep contact information publicly available in order to avoid having his or her works 

become subject to the orphan work provision.220 

Several others were in favor of the formal approach;221

 one argued that it places 

the burden of keeping contact information current on the party best able to bear it: the 

owner of the copyright.222 Supporters of formal systems argued and supporters of case-

 unlikely to be of continuing commercial interest to the owner. Moreover, requiring a search will make

large projects that lack large budgets unfeasible. This commenter argued in favor of establishing definite 

criteria for orphan work status, which would include objective criteria such as the age of the work, whether 

it was being exploited commercially, and whether it was listed on certain voluntary registries, but also 

argued that no actual search for the owner should be required if those objective criteria were true at the time

of the use. See Harvard University Library (639). 

217 Under a “case-by-case” standard, the user’s search is judged on a case-by-case basis, i.e. the 

adequacy of a search for an owner is considered ad hoc, with reference to the circumstances prevailing at 

the time of the search. Under the “formal” approach, there is a pre-set list of required searches, and once 

the user performs those searches without success, the work is deemed orphaned. It should be noted that the 

case-by-case versus formal issue can be separated conceptually from the issue of registries, even though the 

two issues were often combined in the comments. For example, a formal system could consist in allowing

use of an orphan work if searches are conducted according to a pre-determined list of searches, but the list 

did not include a search of a designated orphan work registry. The list might include searches on 

prominent Internet search engines, searches of any collective management organizations’ databases, and 

searches of the Copyright Office’s records, but no search of designated orphan works registry. Conversely, 

a case-by-case standard might or might not involve a registry. For example, if a well-known and 

comprehensive voluntary registry of owners existed in a particular industry or for a particular type of work, 

presumably any “reasonable search” for the owner would include a search of that registry. 

218 Association of American Publishers, Inc. (“AAP”) (605); International Coalition for Copyright 

Protection (“ICCP”) (693), North Carolina Statue University Libraries (“NC State”) (606), ASMP (668) 

(anything else would be “Procrustean”), Kernochan (666); College Art Association (“CAA”) (647)

219 Public Knowledge (“Public Knowledge”) (629). 

220 National Music Publishers’ Association, Inc. & The Harry Fox Agency, Inc. (“NMPA”) (690) 

221 Google, Inc. (“Google”) (681), Sincaglia & O’Shell (587). 

222 Save the Music & Creative Commons (“Creative Commons”) (643); Creative Commons 

(R114). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

by-case systems conceded, that a weakness of case-by-case systems is their 

uncertainty.223 One supporter of the case-by-case system replied that sacrificing certainty 

is acceptable because the “gatekeepers” of many cultural institutions (i.e., the general 

counsels at libraries, museums etc.) want a cap on damages more than they want certainty 

that use is permitted.224

Another supporter of the formal approach stated that searches should be clear 

enough, and simple enough, for a computer to perform, because one of the major 

obstacles to the use of orphan works is the labor-intensive nature of manual searches. 225

i. The Role of Registries 

In the comments, the issue of registries was often intertwined with the issue of

whether a case-by-case or formal system is appropriate. The advocates for a formal 

approach typically also advocated that the formal approach’s pre-set list of searches 

include only one search: a search of a registry of owners. Once that registry was 

searched without success, the user would be free to use the work under the orphan work

provision, without further need to search. The practical result of this system would be 

that an owner would be required to list his or her work on the owner registry, or the work 

could automatically be used as an orphan work. 

Owner Registry. Many commenters attacked a mandatory owner registry (i.e., 

one that constituted the sole search criteria in a formal regime).226 One commenter 

argued that such a registry would in effect reinstate a version of the 1909 Act’s renewal 

requirement, which the commenters lamented as an antiquated formality that prejudiced 

inexperienced owners.227 One comment complained that any mandatory-owner-registry 

system failed to address the fundamental problem of the orphan work situation – i.e., 

market failure – and instead just “defined it away.”228 Another comment argued, along a 

 223 July 26 Roundtable Tr. at 16-19.

224 Glushko Samuelson Intellectual Property Law Clinic (“Glushko”) (595). 

225 Google (681); see also Internet Archive (657).

226 NMPA (690); Future of Music Coalition, American Federation of Television and Radio Artists, 

and American Federation of Musicians of the United States and Canada (“Future of Music”) (669); MIT 

Libraries (“MIT”) (515); MPAA (646); AAP (605); UCLA (638); RIAA (687). 

227 NMPA (690).

228 MPAA (R125). 

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similar vein, that the purpose of an orphan works provision should be to promote 

licensing activity, and that any system that causes an owner to lose all rights upon failure 

to satisfy a formality discourages, not encourages, voluntary licensing, because it gives 

an incentive not to negotiate with an owner who failed to comply with the formalities.229

Another frequent criticism of a mandatory owner registry was that it would 

subject the owner’s enjoyment of his or her copyright to a formality, and thus would 

violate Article 5(2) of the Berne Convention.230 Most of the commenters who held this 

view appeared to consider the violation so obvious as not to require any in-depth 

analysis: for example, in one case the commenter stated simply that where an owner 

suffered any diminution of rights as a result of a failure to register, Berne was clearly 

violated.231 There were those, however, who defended mandatory owner registries 

against the charge of Berne violation. One of these argued that Berne is violated only 

when “all meaningful relief” is denied to the owner.232 Another commenter argued that 

the owner’s failure to register can be deemed a “choice” by the owner to opt into the 

orphan works system, the advantages of that system being very low transaction costs for 

licensing. This same commenter argued that since an orphan works system promotes 

uses – i.e., the enjoyment and exercise – of works that would not be possible otherwise 

because of high transaction costs, the Berne proscription against formalities that interfere 

with the enjoyment and exercise is not violated.233

Although most commenters agreed that a mandatory owner registry would violate 

Berne and would in general be ill-advised, many commenters expressed support for the 

creation of some sort of voluntary owner registry.234 An unspoken assumption in 

essentially all of the comments was that an orphan works provision is a second-best 

 229 RIAA (R137).

230 NMPA (690); Future of Music (669); MIT (515); MPAA (646); AAP (605); UCLA (638)

231 Goldstein & Ginsburg (519). 

232 Association of Independent Video and Filmmakers, Film Arts Foundation, IFP-New York,

National Alliance for Media Arts and Culture, and National Video Resources (“AIVF”) (663) In support, 

this commenter cited S. Rep. No. 101-681 [sic, probably 100-352] at 15 (1988). 

233 Creative Commons (643). 

234 MIT (515); Brigham Young University (“BYU”) (548); RIAA (687); MPAA (646); AAP 

(605); Copyright Clearance Center (“CCC”) (691); The Stanford University Libraries (‘Stanford”) (457) (in

context of a proposal limited to amending section 108(h)); International Documentary Association (“IDA”)

(686); ASMP (668); AIVF (663); Kernochan (666); Professional Photographers of America (“PPA”) (642). 

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solution for a situation in which a voluntary, market transaction is not possible.235 

Improving the means by which users and owners can actually negotiate, and thus 

reducing the number of orphan works to which any provision would apply, was therefore 

a very widely agreed goal. Voluntary registries of owners, obviously, would make the 

owners easier to find, and thus would facilitate negotiation.236

There were those, however, who expressed reservations about even voluntary 

registries. One comment argued that any registry, voluntary or mandatory, owner or user, 

would be essentially useless for photographs.237 Very often any description of a typical 

orphan work photograph would be useless: for example, “farmer with three horses, 

mountains in background.”238 A user might never match the photograph to the 

description. Conversely, requiring an owner to monitor a user database would be 

pointless for the same reason. In addition, adding thumbnail images of the photograph 

might not help either (even if it were legal and logistically feasible) because the database 

of images might quickly swell to millions of images: owners and users could still miss 

each other in the mix. 

Another critic of an owner registry made an efficiency argument: the commenter 

argued that requiring every owner to register would impose a very large social cost, but 

only a tiny fraction of the works registered will ever be used.239 Finally, one 

photographer organization objected to an owner registry on the ground that it would be 

unfairly burdensome for professional photographers, a large percentage of whom, the 

organization asserted, have never registered a single work due to the logistical burdens 

associated with registering.240 These photographers, the argument went, will be even 

harder pressed to go back and assemble every photograph taken during their lives for 

placement on an owner registry. 

 235 Cf. RIAA (R137). 

236 See, e.g., ASMP (668); Kernochan (666). 

237 NC State (606). 

238 Id.

239 Glushko (595). 

240 PPA (642). 

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User Registry. Many commenters thought that some form of user registry – an 

“Intent To Use” registry – was a good idea. Some felt that it should be mandatory.241 

One of them argued that requiring a prospective user to file a public document, under 

penalty of perjury, would “keep the users honest.”242 It would also, they argued, help 

identify abusers of the system.

243 Others opined that any user registry should be 

voluntary; they argued that actual use by the user would be more likely to bring out the 

owner than a listing on a registry.244

Against user registries, it was argued that the existence of such a registry would as 

a practical matter force owners to monitor the registry constantly, which would impose 

significant burdens on owners.245 Additionally, some complained that requiring a 

prospective user to file a notice was too burdensome for the user.246

Mechanics of Registries. Many commenters provided thoughts on how registries 

might work as a practical matter. For owner registries, commenters advocated requiring 

the owner to list a title of the work (if one exists), a description of the work, and the 

owner’s contact information.247 For user registries, commenters advocated requiring the 

prospective user to provide a description of the work, contact information for the user, a 

description of the proposed use, and the search efforts undertaken.248 Some also argued 

that the user should be required to document the search efforts, although others disagreed, 

saying that it would be unfair if, years later, the user misplaced the documentation and

thus became subject to full infringement remedies.249

There was general agreement (among the relatively small group who commented 

on the issue) that penalties should be available against parties who knowingly put false 

 241 Creative Commons (643) (for unpublished works); RIAA (687); MIT (515); Michigan State 

University (“Michigan State”) (545); Public Knowledge (629); Duke #2 (597). 

242 The Authors Guild, Inc. (“Authors Guild”) (R135). 

243 Authors Guild (R135). 

244 Microsoft Corporation (695).

245 AAP (605). 

246 AAP (605); CAA (647). 

247 Google (681).

248 Creative Commons (643); Google (681); Duke #2 (597); MPAA (646); NMPA (690).

249 Compare Public Knowledge (629) and PPA (642) with AAP (R85). 

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information on registries (for example, anyone who falsely claimed not to have been able 

to find an owner when they in fact did, or anyone who falsely claimed to own a copyright 

when in fact he or she did not).250 One commenter also proposed that penalties should 

apply to an owner who “timed” the system in order to take advantage of a “submarine 

orphan work” situation – that is, the owner became aware of a notice of intent to use, but 

waited until the user had invested resources in a derivative work, or perhaps in a restored 

version of the work, then appeared and demanded that the user desist.251

There was disagreement over who should operate the registry(-ies). Several 

thought that the natural and best choice was the Copyright Office, in part because it is 

hard to guarantee that any private entity will exist decades from now. On the other hand, 

several commenters argued that a private institution would be more efficient. A few 

commenters advocated a system modeled on the domain-name-registry system, which 

would involve having multiple registries that compete with each other.252

Many additional small administrative matters were discussed in the comments, 

but few of these involved issues of principle. One exception is the issue of whether the 

registries should be machine-queryable, because this issue intersects with the issue of the 

criteria for a reasonable-efforts search. Commenters who wish to clear rights to 

thousands of works at once, and to do so at low cost, desired this feature in a registry. 

This feature would of course only be possible if the criteria of a reasonable-efforts search 

were definite enough that they could be satisfied by a machine.253

ii. The Standard of Reasonable Search 

There was significant philosophical disagreement on the criteria for a “reasonable 

search” or “due diligence.”254 Some commenters proposed specific resources that should 

be searched, including: 

 250 RIAA (687); IDA (686); PPA (642); Duke #2 (597).

251 Duke #2 (597). 

252 Creative Commons (643); but see July 26 Roundtable Tr. at 122 (criticizing domain name 

registration system as “riddled with errors, inaccuracies, and fraud”) (statement of Steve Metalitz, RIAA). 

253 Google (681); Internet Archive (657). 

254 As noted above, this issue would exist under either a formal or a case-by-case system, and

whether or not registries existed. In a formal system, the criteria would be defined ex ante; in a case-bycase system the merit of the search would be judged ex post. In the formal systems proposed by

commenters, search of the mandatory registry would, standing alone, be sufficient, but in theory a formal 

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• Copyright Office records; 

• Internet search engines;

• On-line telephone directories and address directories; 

• Print telephone directories when the owner’s geographical location 

is known; 

• Databases of trade associations or professional groups; 

• For musical works, the PRO databases; and 

• The ownership information appearing on the face of the orphan 

work255

Several commenters favored varying the standard of reasonable efforts depending 

on the category of user, or the category of work. For example, they argued that the 

standard for finding the owner of a musical work will be different than the standard for

finding the owner of a photograph, because musical work performing rights organizations 

(“PROs”) have very well developed databases of information, whereas photography 

organizations do not have resources of equal magnitude.256 Examples of varying the 

work by category of user included making standards for libraries lower than for 

commercial entities.257 Some commenters argued, more broadly, that the nature and 

resources of the user should be considered when determining whether a search was 

adequate.258

“Piggybacking.” Opinions diverged on the question of whether a user seeking to 

use an orphan work should be able to “piggyback” on searches done previously by 

another user.259 Several commenters argued that a subsequent user should be able to rely 

 system could be devised in which the user was required to search the mandatory registry plus other sources. 

Likewise, a case-by-case system could in practice require search of voluntary registries, or not.

255 PPA (642); ASMP (668); NMPA (690); Broadcast Music, Inc. (“BMI”) (640); NMPA (R120).

256 MPAA (646); IDA (686); see also ASCAP (628). 

257 Duke #2 (597); SAA (R88)

258 Glushko (595) at 3; AAP (R85) at 5 

259 For example, user A conducts five fruitless searches for the owner (a search of the Copyright 

Office’s records on date X, an Internet search engine search on date Y etc.), then concludes that the owner

is unlocatable and thus that the work is an orphan. User A goes ahead and uses the work, and perhaps posts 

the results of his searches on an official Intent-To-Use database. The question of piggybacking is whether

a subsequent user, B, is entitled to rely on the searches conducted by A in order to establish that the owner 

could not be found with reasonable efforts on date X and Y, or whether B must perform the same searches 

over again.

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

on a previous user’s searches; the stated reason was usually that it would be inefficient to 

require subsequent users to re-perform fruitless searches.

260 Other commenters took a 

different view: they felt that any information from the first user might be unreliable, or 

might have changed in even a short interval following the first user’s searches.261 In the 

roundtable discussions, most participants seemed to agree that a subsequent user’s 

reliance on a prior search would simply be part of the ultimate question as to whether that 

subsequent user was reasonably diligent, and should be evaluated in light of all the 

circumstances of that search.262

Best Practices. Finally, several commenters recommended that the Copyright 

Office, or perhaps industry organizations, publish “best practices” for searches in 

particular industries.263 These would consist of lists of resources that should be searched

in order to conduct a “reasonable efforts” search for an owner. 

b. Limitations on Works, Users, and Uses 

Many commenters proposed that the definition of orphan work be limited to some

subset of works and/or users: some proposed limits on users, some on works, and some

on the types of uses that users could make of orphan works. These proposals are 

discussed below. 

i. Limitations on Categories of Works 

Age of the Work. Many commenters responded to the question posed in the NOI 

of whether the age of the work should be part of the definition of an orphan work. The 

majority said that it should not, pointing to the fact that the sine qua non of an orphan 

work – the fact that its owner cannot be located – has no necessary tie with the age of the 

work.264 These same commenters acknowledged that a work is more likely to be 

orphaned as it gets older, but said that age per se should not weigh in favor of deeming a 

 260 Public Knowledge (629); Free Culture (673); IDA (686); Duke #2 (597) (proposal allows 

piggybacking after an initial ban period). 

261 RIAA (R137), MPAA (R125). 

262 July 26 Roundtable Tr. at 46-55.

263 Glushko (595); Cornell University Library (“Cornell”) (569); Future of Music (669).

264 Library of Congress (“LOC”) (630); Michigan State (545); RIAA (687); MPAA (646); Public

Knowledge (629); Glushko (595); AAP (605); Microsoft (695); Future of Music (669); MIT 

OpenCourseWare (“MIT OpenCourseWare”) (651). 

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work to be orphaned.265 The dissent from this position came from a commenter who 

opined that establishing a minimum time during which the work could not be orphaned 

would be an appropriate way to balance the interests of the public with the interests of

owners.266 Another commenter believed that adding age to the formula of an orphan 

work would be appropriate if it increased the simplicity of the system (for example, in a 

“formal” system that required owner registration after a fixed period of time such as 28 

years).267

Unpublished Works. There was significant disagreement on the question (also 

posed in the NOI) of whether orphan works should be limited to published works. Some

held that unpublished works should be excluded, to preserve the rights of privacy and 

first publication recognized in Harper & Row Pubs. v. Nation Enterprises.268 Several 

arguments against this position were made. One argued that unpublished works such as 

letters and diaries are “the building blocks of history.”269 Several responded to the 

privacy argument; they argued that (1) the purpose of copyright law is to promote 

disclosure, not protect privacy; (2) the protection of privacy should be left to the law of 

privacy; and (3) Harper & Row did not establish an inflexible rule.270 Finally, some

made the practical arguments that very few orphan works will present privacy issues,

271

and that it will often be difficult to determine whether an orphan work was published 

because the face of the work will not reveal the information and because the definition of 

“published” is very technical and has fluctuated over the past century.272

Foreign Works. One commenter advocated excluding any foreign work from the 

definition of orphan work because if the U.S. allowed use of foreign works under an 

 265 CAA (647) at 31; Michigan State (545); RIAA (687); MPAA (646). 

266 NMPA (690).

267 MIT (515). 

268 471 U.S. 539 (1985). See Goldstein & Ginsburg (519); GAG (547); Future of Music (669). 

269 Public Knowledge (629). 

270 Public Knowledge (629); Society of American Archivists (“SAA”) (620); CAA (647). 

271 SAA (R88). 

272 In particular, one commenter noted that publication of motion pictures has been inconsistent

over the past century, see Loughney (700), and another commenter noted that any orphan works provision 

would have to address section 303(b), which states that “the distribution of any phonorecord prior to 

January 1, 1978, shall not constitute publication of any musical work embodied therein.” RIAA (687). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

orphan works provision, foreign countries would abuse our example and U.S. works 

would be subject to unfair and/or onerous orphan works provisions abroad.273 Other 

commenters favored including foreign works in the definition of orphan works, arguing 

that: (1) it will often be difficult to determine the nationality of an orphan work; (2) since 

many of the works that users will want to use will be foreign, excluding them will leave a 

significant part of the problem unresolved; and (3) excluding them would provide 

incentive to manipulate the nationality of works, including creation of works outside of

the U.S. rather than within.274

Musical Works. One PRO argued that all musical works should be excluded from

the definition of orphan work, because essentially every musical work owner can be 

located through the PROs or through The Harry Fox Agency.275 Several comments took 

issue with this position, stating that various categories of musical works were poorly 

represented on PRO databases, or that the information on the databases was contradictory 

or out-of-date.276

ii. Limitations on Categories of Users 

Non-Profit, Educational, Libraries or Archives. Several commenters wanted any 

orphan works provision to advantage only non-profit institutions, educational institutions, 

libraries, and/or archives.277 The opponents of this limitation argued that large 

commercial entities are more likely to have the resources to make valuable derivative 

uses of orphan works, and that (especially with the rise of the Internet), the distinction

between the activities of a library and its patrons is often minimal or blurred.278

States. One comment raised the idea of excluding States from the eligible pool of 

orphan work users.279 The argument was that any orphan works provision that allowed, 

 273 MPAA (646).

274 Goldstein & Ginsburg (519); Public Knowledge (629).

275 BMI (640); American Society of Composers, Authors and Publishers (“ASCAP”) (628).

276 Creative Commons (R114); Ristau (602); Fautley (73); Kolle (103); Kline (151); Apodaca 

(153).

277 Graphic Artists Guild (“GAG”) (547); NC State (606); (“Internet Archive”) (657).

278 CAA (647); Ockerbloom (674); see also Carnegie Mellon (537); Library Copyright Alliance 

(“LCA”) (658).

279 AAP (605). 

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generally, a resurfacing owner to collect fees but not to obtain an injunction against the 

continued use of the work, would, when applied to a State, be toothless because the only 

remedy – fees – would be disallowed under the 11th Amendment to the U.S. 

Constitution.

280 Several reply comments signed onto this comment.281 The initial 

commenter proposed that a State be allowed to opt into the orphan works provision if it 

waived 11th Amendment immunity. 

iii. Limitations on Categories of Uses 

Cultural and Other Non-Commercial Uses. Several commenters stated that any 

uses of orphan works should be limited to cultural uses such as restoration and 

preservation of works that are embodied in decaying media, use of works in educational 

or research projects, or, more generally, to non-commercial uses.282

Attribution. Several commenters wrote in favor of requiring the user of an orphan 

work to include information on the work identifying the work as an orphan work, and 

others advocated including whatever owner information was known.283 One commenter 

argued against the latter requirement, stating that oftentimes the information collected by 

one user would be misleading to subsequent searchers.284

c. Approval by an Authorized Body (e.g., the Copyright 

Office) 

While many commenters discussed the standard of reasonable search, 

significantly fewer discussed the merits of having an official body certify the adequacy of 

the search prior to the use. Of the commenters who did address this issue, several 

advocated having the Copyright Office review applications from potential users, and 

issue approvals.285 Some of these expressed approval for the Canadian orphan works 

system, under which the Canadian Copyright Board reviews applications for use of 

 280 Id.

281 MPAA (R125); Authors Guild (R135) at 5.

282 GAG (547); Consortium of College & University Media Centers (“CCUMC”) (667); Carnegie 

Mellon (537); PPA (642). 

283 Glushko (595); Public Knowledge (629); Morris (652). 

284 AAP (R85).

285 GAG (547); IDA (686); ASMP (668); Tilly (677); Douglas (626). 

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orphan works, and approves them prior to use.286 Several other commenters, however, 

expressed disapproval of the Canadian system: these commenters often pointed to the 

fact that the Canadian office has issued few licenses.287 See NOI (125 licenses between 

1990 and January 2005). Generally, the critics of the Canadian system felt that it would 

impose an undue administrative burden on whatever agency reviewed the applications, 

would lead to lengthy delays in the approval process, and would provide little benefit.288 

One commenter also made the converse point: the cost of pushing an application through 

the administrative process will in many cases exceed the commercial value of the 

contemplated use, which will discourage use of orphan works.

289

Finally, one commenter advanced the idea that a court, as opposed to an 

administrative body, could be the one to grant ex ante approval to use an orphan work. 

The orphan works statute would give federal courts jurisdiction to hear declaratory 

judgment actions in which a party seeks a declaration that his or her search was adequate. 

The copyright owner, obviously, would not be required to participate in the 

proceeding.290

2. Consequences of Designation 

Once a work has been designated an orphan work, the major remaining questions 

are what use may be made of it, and the terms of the use. There was a great deal of 

disagreement among the comments on how much a user should pay for use of an orphan 

work. There was, however, general agreement that if the owner reappeared, new types of 

uses of the work should not be permitted. The answer to the question of how existing 

uses of the work should be treated when the owner reappeared, however, proved more 

divisive. 

 286 ICCP (693); Future of Music (669). 

287 Creative Commons (643). CAA (647) at 39. One commenter also argued that this approach 

would lead to a large backlog in the U.S. See Kernochan (666). 

288 Creative Commons (R114); Glushko (595); Douglas (626) 

289 Creative Commons (R114) at 18-19.

290 Greenberg (615).

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a. User Fees 

Several commenters proposed that a user should be entitled to use an orphan work 

for free, without the payment of any fee.291 Most other commenters took for granted that 

some sort of fee should be paid, but differed on the measure of the fees. Several favored 

a “reasonable license” fee.292 One comment stated that the orphan works problem was 

one of market failure, so any orphan works provision should attempt to replicate the 

market price – which would be the license fee that would have been negotiated between 

the parties.293 Others, however, opposed reasonable license fees because, they argued, 

such fees are not known prior to the use, and thus the unknown exposure to monetary 

liability put a cloud of uncertainty over the use.294 Others made the argument that a 

reasonable license fee might be practically impossible to calculate because the work is, 

by definition, not being used, so finding comparable licenses on which to base the fee 

might be impossible.295

Some commenters favored a third measure: a fixed statutory fee.296 For example, 

display of a work on a website might be fixed at $100. Those in favor of this measure 

preferred its definiteness.297 Some argued that the fixed rate should be low, to encourage 

use,298 but others argued that it should be high, to encourage users to make efforts to find 

owners.299 Against statutory fixed fees in general, some commenters argued that low 

fixed rates would be tantamount to no fee at all, because any potential recovery by the 

 291 MIT (515); the American Film Heritage Association & Moviecraft, Inc. (“AFHA”) (520); 

Carnegie Mellon (537); Cornell (569). One commenter argued in opposition to this view that taking the 

owner’s copyright for use without any compensation, presumably in a case where the owner reappeared, in

this way would violate the Fifth Amendment to the U.S. Constitution. Field (34). 

292 Duke #2 (597); SAA (620).

293 RIAA (R137).

294 Gushko (595).

295 CAA (647). 

296 BYU (548) (2 cents per page); Creative Commons (643) (nominal fee); IDA (686); Public 

Knowledge (629) ($200 per use, with use defined as a whole “transaction”), Summer (684). 

297 Creative Commons (643). One commenter pointed out that where a compulsory license 

already existed in the copyright law for a type of use (e.g., the section 115 license), then the orphan work

amount should match the compulsory rate. See NMPA (690). 

298 E.g., Creative Commons (643) (nominal fee). 

299 McClatchey (R1). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

owner would not be worth litigating.300 Conversely, one commenter disapproved of fixed 

rates because the rate might be higher than the rate the owner would have given in a 

negotiated deal.301

A fourth measure proposed by the commenters was actual damages with a 

statutory cap.302 This approach would have many of the same benefits and drawbacks as 

the fixed statutory fee approach: if the cap were low, then users would have definiteness, 

but owners would in essence be denied all rights. 

There was also difference of opinion on who would set the fees. Many said the 

Copyright Office should do it,303 but one said that federal courts should,304 and one said 

that the parties should, once an owner reappeared.305

While many commenters addressed the issue of the measure of the fees, far fewer 

addressed the issue of when the user would pay: (1) in advance of or at the time of use; 

(2) only once the owner appeared, and then pay fees for past use to that point; or (3) only 

once the owner appeared, and then pay only fees for future use. Several commenters said 

that users should not have to pay until the owner appeared, because payment of fees prior 

to that time would discourage use of orphan works and would “tax” people who are 

trying to do the right thing.306 Others suggested that if the owner did not appear after a 

designated time, the fees would escheat to either the Copyright Office (or whatever other 

organization is administering the fees), to an arts organization such as the National 

Endowment for the Arts, or to an organization that supports artists in the same field as the 

orphan work.307 Some, however, felt that the fees should go back to the user.308

 300 MPAA (R125). 

301 Electronic Frontier Foundation (“EFF”) (R142). 

302 Glushko (595) (actual damages up to $100 per work, with $500 cap per transaction); AIVF

(663) ($500 cap); CAA (647) (actual damages, or $100, whichever is less; for groups of works, $500 cap). 

303 Future of Music (669); GAG (547) (Copyright Office should survey authors in the appropriate 

field to determine royalty); ASMP (668) (Copyright Office negotiates and collects fee).

304 AAP (605). 

305 RIAA (R137).

306 EFF (R142); Brooks (R37); AAP (605); Duke #2 (597); Carnegie Mellon (R49); Authors Guild 

(R135). 

307 GAG (547); IDA (686); ASMP (668); Future of Music (669); Gupta (332); SFFWA (R108).

308 Ockerbloom (674). 

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b. Time Limits 

A few commenters suggested that the benefits of the orphan works system granted 

to the user should not be perpetual: for example, it should have a five-year term.

309 The 

user would be required to go through the reasonable-efforts search process again after 

five years if the user wanted to continue use of the work. 

c. Exclusive vs. Non-Exclusive Licenses 

Most commenters assumed that the orphan works system would provide the 

equivalent of a non-exclusive license to the user, and one said so explicitly.310 However, 

one commenter argued that a user should be allowed to seek an exclusive license if he or 

she paid a higher fee.311 Finally, one made the interesting suggestion that the fee should 

be set by auction: presumably, this would be an auction for an exclusive license.312

3. When an Owner Appears 

New Uses. Most commenters agreed that if the owner reappears, the owner’s full 

rights in the work should restored going forward; that is, injunctions and damages should 

be available to the owner for any “new” uses of the work.313 Defining a “new” use, 

however, posed difficult questions: for example, when a user had, under the orphan 

works provision, made a motion picture of an orphan novel, would a release of the 

motion picture on DVD constitute a “new” use?

Some commenters, however, did favor allowing new uses of orphan works even 

after an owner appeared.314 They did not, however, provide policy reasons to support this 

position. 

Existing Uses. Most commenters also agreed that a user who had relied on the 

orphan works provision to invest resources in a work, perhaps producing a derivative 

work, should not be prevented from continuing to exploit that use after the orphan work’s 

 309 Getty (610); SFFWA (R108); but see Slater (672) (7-year exclusive license). 

310 Getty (610).

311 SFFWA (607).

312 Keefe (439). 

313 AFHA (520); Google (681) (user must stop within grace period); CAA (647); Getty (610); 

Directors Guild of American, Inc. (“DGA”) (621).

314 Public Knowledge (629). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

owner appeared.315 Some, however, would put conditions on that use: for example, one 

argued in favor of requiring the user to credit the owner going forward.316 For those few 

commenters who advocated a fixed term license for the use of an orphan work, this issue 

was presented differently: they said that the existing use should be allowed to continue, 

but only for the remainder of the license’s term.

317

One commenter raised the issue of an existing use that is still in the process of

being prepared (for example, a movie that is still in the process of being shot). This 

commenter argued that these uses should be allowed to continue as well.318

Existing Law Not Affected. Several commenters stated strongly that the fair use 

defense should not be affected in any way by an orphan works provision.319 One 

commenter also pointed out that the statute of limitations should also not be affected.320 

The issue on which significant disagreement arose was, however, the issue of the burden 

of proof on the question of whether the user’s search was reasonable. One commenter 

proposed that once the user submitted a statement detailing the search he or she 

conducted, that statement would give rise to a presumption that the search was 

reasonable, and the burden would fall to the owner to prove that the search was 

unreasonable.321 Other commenters argued that the burden of reasonableness should lie 

with the user.

322

Attorneys Fees and Statutory Damages. There was significant philosophical 

disagreement on the issue of whether attorneys fees and statutory damages should be 

available to a reappearing owner. Several commenters argued that statutory damages and 

attorneys fees would defeat the whole purpose of an orphan works provision, because 

 315 MPAA (646); Public Knowledge (629); Future of Music (669); AIVF (663); Orphan Films, 

Center for the Study of the Public Domain (“Duke #1”) (596); DGA (621); SAA (620). 

316 CAA (647). 

317 Getty (610); SFFWA (R108).

318 Duke #1 (596). 

319 Glushko (595); AAP (605); CAA (647).

320 CAA (647); Public Knowledge (629).

321 Public Knowledge (629). 

322 See, e.g., AAP (605).

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uncertainty and large potential exposure would be re-introduced for the user.323 On the 

other hand, one commenter argued that the absence of attorneys fees or statutory damages 

would result in the owner being denied even the low orphan work license fees, because 

the user would be faced with, at worst, a tiny liability after trial that is not worth the cost 

of litigation, so the user would often simply refuse to pay the owner.324 The owner’s only 

recourse would be to pay for expensive federal court litigation for an uncertain recovery 

of a small amount. One compromise between these positions was to make attorneys fees 

and statutory damages available where the user unreasonably refused to pay a reasonable 

license fee.325 Another commenter proposed that a “small claims” court be established to 

handle these disputes.326

4. TRIPS Article 13 

As noted above, numerous commenters discussed the implications of a limitedliability regime for compliance with the Berne Convention’s prohibition on formalities. 

Some commenters also addressed the question of whether such a regime would violate 

TRIPS Article 13, which requires that “limitations or exceptions” to copyright be 

“confined” to “certain special cases which do not conflict with a normal exploitation of

the work and do not unreasonably prejudice the legitimate interests of the right holder.” 

Most of the commenters who addressed the issue opined that Article 13 would not be 

violated because orphan works were a narrow, well-defined category of works (and thus 

were “certain special cases”) that were by definition not subject to any commercial 

exploitation (and thus use of the works did not “conflict with a normal exploitation of the 

work”).327

On the other hand, one comment argued that Article 13’s “certain special cases” 

language required a narrow range of works, a narrow range of users, and a narrow range 

of rights excepted. As many of the proposed orphan works provisions would apply to all 

works, would be available to all users, and would affect all rights, this test, the 

 323 Public Knowledge (629); AAP (605); CAA (647). 

324 PPA (642). 

325 AAP (605). 

326 PPA (642). 

327 Glushko (595); Public Knowledge (629); AIVF (663); 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

commenter argued, would not be met. The comment further argued that the second step 

in the test (“do not conflict with a normal exploitation of the work”) is usually read to 

refer to the sort of uses that a copyright owner generally makes of his or her work. If the 

orphan works provision permitted uses that the owner would ordinarily license – and it 

clearly would – then the provision might fail this test also. However, the commenter 

noted, in the past the second step of the test has not been applied to the orphan work 

context, so its construction in this context is uncertain. The language might be flexible 

enough to apply to specific uses. Finally, the commenter argued that the third step (“do 

not unreasonably prejudice the legitimate interests of the rightholder”) should be read to 

encompass both actual and potential uses, so once again many of the proposed orphan 

works provisions would fail the test.328 

5. Moral Rights 

Another implication of an orphan works provision that was explored in a few 

comments was the issue of moral rights. The Berne Convention requires protection of an 

author’s moral right of integrity and attribution.329 Several commenters pointed out that 

if there are no limits on the way that users can use an orphan work, it is possible that a 

user will use it in a way that the author would consider offensive.330 This might violate 

the author’s moral rights.331 No helpful suggestions were made as to how to solve this 

problem (other than avoiding an orphan works provision altogether). 

D. Other Legislative Solutions 

Many comments proposed solutions to the orphan works problem that were not in 

the category of limitations on liability. Many of these said, in a general way, that orphan 

works should “fall into the public domain.”332 Numerous others proposed that various 

formalities should be imposed: all copyrighted works should be registered (either 

initially or after a fixed period of years), or owners should be required to file a renewal 

 328 Goldstein & Ginsburg (519). 

329 See Berne Convention Article 6 bis. 

330 Viscopy Ltd. (582); Long (699); Lord (650). 

331 Lord (650). 

332 Ayers (398); Webster (399); Williams (401). 

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registration at certain intervals.333 Some commenters also proposed radical reduction of 

the term of copyright (to, for example, five or ten years),334 or the abolition of copyright 

altogether.335

Other comments proposed specific carve-outs from copyright protection: for 

example, copy shops should be exempt from liability for copying family photographs; 

sheet music should be available for public schools; and historical events, such as the 

Kennedy assassination, should be public domain.336

Several comments proposed attacking the orphan works problem by “improving” 

the rules related to assignment of copyright.337 The most radical of these was the 

proposal that copyright never be assignable.338 Others were clarifying the rules by which 

copyright is transferred when a corporation goes defunct or merges. (Specific 

clarifications were not given.)339 Similarly, one commenter proposed that heirs should 

not be allowed to inherit a copyright unless they perform a formality within a certain time

after the death of the author.340

Some commenters approached the problem by suggesting changes to areas of law 

other than copyright. For example, one commenter recommended changing the tax law 

so publishers could take a tax write-off for releasing their works under a public license.341 

Another proposed that heirs be taxed on copyright royalties at a high rate.342 One 

commenter focused on the law of bankruptcy, and proposed that the Copyright Office 

promulgate regulations that establish default rules for the assignment of copyright when 

 333 Salsbury (R67); Konop (R96); Lang (R6); Cook (R21); Lawton (R26); Creative Commons

(R114). 

334 Cook (R21); Boland (R68); Konop (R96); Rook (121); Summers (684); Phillips (679). 

335 Binkley (272); Houser (134).

336 Stone (585); T. Thompson (242); Spehr (516).

337 Cook (R21); Heskett (408); Milazzo (R87); SFFWA (607) (provide a rule for clear chain of 

title). 

338 Cook (R21); Heskett (408).

339 Milazzo (R87); SFFWA (607). 

340 Cook (R21). 

341 M. Brown (5).

342 Konop (R96). 

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the copyright is not scheduled in the bankruptcy decree.343 Finally, on the international 

level, one comment stated that the U.S. should withdraw from the Berne Convention.344

 343 SFFWA (607).

344 Phillips (679). 

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VI. Conclusions and Recommendations 

A. Conclusions 

Based on the submissions of the interested parties, the roundtable discussions, and 

all of the information we have reviewed in this study, we have concluded the following: 

(1) The Orphan Works Problem is Real. There is an identified need to address the 

“orphan works” issue, as a wide range of users have identified specific situations in 

which uncertainty about a work’s ownership status could not be reasonably removed and 

they refrained from using that work primarily because of such uncertainty. 

(2) The Orphan Works Problem is Elusive to Quantify and Describe 

Comprehensively. The precise scope and contours of the problem remain difficult to 

assess, given that many instances require a comprehensive review of the circumstances 

surrounding the proposed use of the work. Although we have received nearly 850 written 

comments in this proceeding and there has been a substantial amount of interest in this 

issue, exactly how frequently the orphan works situation occurs is not entirely clear. 

Some data presented to us indicate that in most cases copyright owners are located by 

users, but that the portion of works for which owners are not located can be significant.345 

In short, although difficult to quantify, the orphan works situation does occur and, in our 

view, warrants some form of legislative amendment. 

(3) Some Orphan Works Situations May Be Addressed by Existing Copyright 

Law, But Many Are Not. U.S. copyright law has a few limitations and exceptions that 

might be directly applicable to a user in an orphan work situation, and provides other 

exceptions and limitations that give the orphan work user some choice in making use of 

the work, but ultimately there still exist situations where U.S. copyright law does not 

provide users in the orphan works situation with clear guidance on whether and how they 

should use such works, and thus does not minimize the uncertainty over the use of those 

orphan works. 

 345 The Authors Guild presented results of a survey of authors indicating that around 89% of

respondents “Never” or “Rarely” encountered an orphan works situation. (R135) Nevertheless, around

65% of respondents agreed that a legal provision to address the orphan works situation would ease their

work as a writer, with less than 7% disagreeing with that statement. Carnegie Mellon University Libraries 

(537) conducted a study involving requests for permissions to digitize the books in its collections and found 

that copyright owners could not be located for about 22% of the books in the sample. 

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(4) Legislation is Necessary to Provide a Meaningful Solution to the Orphan 

Works Problem as We Know It Today. The Copyright Office does not currently have 

any regulatory authority to address the orphan works issue in any meaningful way, and 

thus legislation is necessary to help resolve the problems inherent in orphan works. 

There appears to be clear support among a wide variety of stakeholders for legislation 

that would give some relief to users who perform reasonably diligent searches for 

copyright owners, with a provision to protect the interests of authors and right-holders in 

the event they eventually surface. 

B. Recommendations 

We recommend that the orphan works issue be addressed by an amendment to 

Chapter 5 of the Copyright Act regarding “Copyright Infringement and Remedies.” The 

specific language we recommend is provided at the end of this Report. We propose 

specific language in order to be as clear as possible about the nature and substance of our 

recommendations, and believe that the formulation in our Recommended Statutory 

Language provides the best means of implementing the concepts in our recommendation. 

It must be stressed, however, that we remain open to suggestions on how such language 

might be improved, or how it might be modified to avoid unintended consequences, and 

would be pleased to work with members of the Judiciary Committee and stakeholders on 

any proposed legislation to address the orphan works issue. 

1. Background 

In considering the orphan works issue and potential solutions to the difficulties 

faced by users described in Section V, the Office has kept in mind two overarching and 

related goals. First, any system to deal with orphan works should seek primarily to make 

it more likely that a user can find the relevant owner in the first instance, and negotiate a 

voluntary agreement over permission and payment, if appropriate, for the intended use of 

the work. In this sense the system should encourage owners to make themselves known 

and accessible to potential users, and encourage users to make all reasonable efforts to 

find the owners of the works they wish to use. In a perfect world, a statutory provision 

on orphan works would never actually be invoked: users would make reasonable 

searches and where they did not find the copyright owner, it would always be the case 

that such owner either does not exist or does not care about the use of the work, and 

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infringement litigation would never result. Conversely, copyright owners would be 

encouraged to make themselves known to users and do so in a way that would make any 

reasonable search identify and locate them, so that users would be able to seek 

permission directly and not have to rely on the statutory provision. 

Second, where the user cannot identify and locate the copyright owner after a 

reasonably diligent search, then the system should permit that specific user to make use 

of the work, subject to provisions that would resolve issues that might arise if the owner 

surfaces after the use has commenced. These provisions should balance the interests of 

the right holder with the interest of the user who has undertaken to use a work in reliance 

on the orphan works designation. Ideally those provisions should establish in the user’s 

mind a measure of certainty about his or her copyright liability exposure in the rare event 

that an owner might surface in the future, while at the same time not carving back too 

much on the copyright owner’s rights and interest in exploitation of his or her copyright. 

In the roundtable discussion, there seemed to be a clear consensus that these two goals 

were appropriate objectives in addressing the orphan works issues.346

Another important policy consideration guiding our deliberations and 

recommendation is the principle that the orphan works provision should be independent 

of and work in conjunction with existing exemptions and limitations to copyright. The 

limitation on remedies we propose is not intended in any way to affect the existing scope 

of copyright protection (such as that embodied in the idea/expression dichotomy) or any 

existing exemptions or limitations that might be applicable to the use of the orphan work. 

This principle is embodied in the structure of the provision, which is only applicable 

where the use is found to be infringing. Should a user be able to show that his use falls 

within the fair use exemption or is otherwise free of copyright liability, there would be no 

need to invoke the orphan works limitation of remedies. As described above in Section 

IV, for many of the situations described to us in the comments, other provisions of 

 346 See, e.g. July 26 Roundtable Tr. at 63 (“[A] properly constructed orphan works solution both

creates incentives for rights holders and would-be licensees to get together and frees up works that 

otherwise would be locked up for lack of being able to identify a rights holder. ... [T]hese are [not]

inherently antagonistic goals.”) (statement of Mike Godwin, Public Knowledge) & 64-65 (“I would think

that the objective of this process is two-fold. One is to make the existing system work better by helping

users and owners to get together. The other objective is to create a safety valve for users that genuinely 

cannot find an owner so that they can use a work, particularly for transformative purposes.” (Statement of

Fritz Attaway, MPAA). 

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copyright law might more specifically address the use, and those specific exemptions 

should be applied in the first instance. The orphan works provision we propose would 

only be relevant where all other exemptions have failed, and, as a result, the user would 

be deemed an infringer of copyright. 

Finally, efficiency is another overarching consideration we have attempted to 

reflect, in that we believe our proposed orphan works solution is the least burdensome on 

all the relevant stakeholders, such as copyright owners, users and the federal government. 

As described in more detail below, many of the proposed solutions involve registries or 

other databases of owner or user information, some of which would be administered by 

the Copyright Office.347 While it may be the case that such administrative mechanisms

might ultimately be of great assistance in helping put owners and users of orphan works 

together, it is our view, at this time, that such systems would likely entail more resources 

and efforts than the proponents anticipate or are readily available without providing 

offsetting benefits, and therefore should only be implemented when a clear need for them

is presented. It makes more sense at this point to implement a “low-cost” solution like

the recommendation and determine with practical experience whether that is sufficient to 

solve much of the problem. In addition, we hope that our proposed solution is 

compatible with and encourages development of such registries and databases by relevant 

stakeholders organically, independent of government involvement, so that those systems 

can be the most flexible and adaptive to the needs of the owners and users of copyright in 

the relevant sectors. 

2. Specific Provisions 

The proposed amendment follows the core concept that many commenters 

favored as a solution to the orphan works problem: if the user has performed a 

reasonably diligent search for the copyright owner but is unable to locate that owner, then 

that user should enjoy a benefit of limitations on the remedies that a copyright owner 

could obtain against him if the owner showed up at a later date and sued for infringement. 

The limitations on remedies should give the user more certainty that his efforts to make 

the work available to the public will not result in significant monetary damage or an 

injunction that would disrupt the efforts the user has made in reliance on the orphan 

 347 See, supra, page 73. 

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works designation. At the same time, the owner should in most cases be able to recover 

compensation for the use of his work, prevent new uses of the work by the user, and, 

where possible, receive attribution for his work. 

By amending the remedies provision of the Copyright Act, the recommendation 

makes clear that it is not an exemption or limitation of general applicability, but a 

limitation on the remedies that might be imposed in particular circumstances with respect 

to a particular user. Additionally, this approach preserves the applicability of all 

exemptions and limitations to copyright, in that it only applies after a finding of 

infringement has been made – if the use of an orphan work qualifies for an exemption 

like fair use under section 107 or a library exemption under section 108, then there is no 

infringement liability and thus remedies are no longer relevant. 

The recommendation has two main components: (1) the two threshold 

requirements of a reasonably diligent search for the copyright owner and attribution to 

the author and copyright owner, if possible and appropriate under the circumstances; and 

(2) the closed list of remedies that would be available if the user proves that he conducted 

a reasonably diligent search. The details of the recommendation are set out in the next 

sections, followed by a discussion of some other proposals that we considered carefully, 

but ultimately decided not to recommend. 

a. The Requirement of Reasonably Diligent Search

Subsection (a) sets out the basic qualification the user of the orphan work must 

meet: he must perform a “reasonably diligent search” and have been unable to locate the 

owner of the copyright in the work. Such a search must be completed before the use of 

the work that constitutes infringement begins, and the user should bear the burden of 

proving what search was performed and whether it was reasonable.348 A user might rely 

on the search efforts of another user for the same work, but the test is whether it was 

reasonable under the circumstances for that second user to do so – there should not be 

 348 Some commenter proposed that a user bear the burden of producing evidence of his search, 

while the copyright owner bear the burden of proving the search was unreasonable. See, e.g. Glushko 

(595). In our view, because the recommendation is a limitation on remedies available against an infringer, 

it makes sense to place the entire burden on that infringer to prove his reasonable search, in part because

the evidence of the search that was performed and the circumstances of the use will in almost every case be

within the control of the user, not the copyright owner. Note that many participants in the roundtable 

indicated that the issue of burden of proof will not make much difference in practice. See, e.g., July 27

Roundtable Tr. at 61 (statement of Jeffrey Cunard, CAA). 

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any per se rule preventing or permitting one user’s “piggybacking” on another’s 

search.349

The term “locate” the copyright owner should be construed to mean identify an 

address to which a request for permission to use the work can be sent, which is consistent 

with the over-arching goal of this recommendation to put copyright owners and users 

together. For example, if it is clear from a reasonable search that an author has a literary 

agent to whom permission requests can be sent, the fact that the user cannot specifically 

locate the author (perhaps because the author is doing research in Antarctica) does not 

mean that the search could not “locate” the author. 

The term “locate” has another dimension that must be addressed. Several 

commenters complained of the situation where a user identifies and locates the owner and 

tries to contact the owner for permission, but receives no response from the owner. They 

suggested that works in these situations should be considered orphan works. This area 

touches upon some fundamental principles of copyright, namely, the right of an author or 

owner to say no to a particular permission request, including the right to ignore 

permission requests. As noted above, the primary goal of this study is to prompt owners 

and users to find each other and commence negotiation – it is not intended to allow use of 

works in disregard of the owner’s wishes after that owner has been found. An owner 

might ignore a permission request for many legitimate reasons and in many situations: an 

individual author might not have the resources to respond to every request; a large 

corporate owner might receive thousands of such requests and it would be unduly 

burdensome to respond to all of them; the request may be outlandish, in that it seeks to 

use a valuable work for no payment or in a way clearly at odds with the manner in which 

the owner is exploiting the work. For this reason, once an owner is located, the orphan 

works provision becomes inapplicable.350

 349 See supra page 78 (describing commenters views on “piggybacking”).

350 See, e.g., August 2 Roundtable Tr. at 22 (“It seems to me that if you find the copyright owner

and the copyright owner is not cooperative or is confused or just doesn't want to talk to you, that takes it 

entirely out of the orphan works scheme and -- because that is not an unlocated owner.”) (statement of 

David Eber, Houghton Mifflin Company)

It should be noted, however, that in very limited situations the failure of an individual who is 

believed to be an owner to respond to a permission request might be relevant to the ultimate question of

whether the search has, in fact, located the owner. For example, a user may have a work for which no 

extrinsic evidence (for example, information from Copyright Office records, collecting rights societies, or

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i. Defining Reasonably Diligent Search

The proposal adopts a very general standard for reasonably diligent search that 

will have to be applied by users, copyright owners and ultimately the courts on a case-bycase basis, accounting for all of the circumstances of the particular use. Such a standard 

is needed because of the wide variety of works and uses identified as being potentially 

subject to the orphan works issues, from an untitled photograph to an old magazine 

advertisement to an out-of-print novel to an antique postcard to an obsolete computer 

program. Each of these presents different challenges in trying to find a copyright owner, 

and what is reasonable in one circumstance will be unreasonable in another. It is not 

possible at this stage to craft a standard that can be specific to all or even many of these 

circumstances. Moreover, the resources, techniques and technologies used to investigate 

the status of a work also differ among industry sectors and change over time, making it 

hard to specify the steps a user must take with any particularity. 

On the other hand, the standard should be understood as incorporating some

minimum requirements in every case. Specifically, the proposed language explicitly 

requires “good faith,” in addition to “diligence.” The purpose of requiring good faith and 

a reasonable degree of diligence for every search is to safeguard against abuse of the 

orphan works exception by users who may conduct superficial searches merely as a 

pretext for exploiting a protected work. Recall that the primary purpose of the orphan 

works system is to put users together with copyright owners; not to provide a way for 

users to avoid contacting copyright owners, and recognizing minimum requirements 

helps promote that goal. To be sure, the standard of diligence will vary according to all 

of the circumstances. But excessive haste and the absence of good faith or diligence 

should preclude the availability of the limitation on remedies. 

 other databases) indicates that the person is the current owner of the work. If that user attempts to contact

the person but the person does not respond, it may be reasonable to conclude that the user has not “located” 

the current owner in those circumstances. See August 2 Roundtable Tr. 23-24 (“I think sometimes the 

person doesn't respond and you haven't located the right person. You might have thought that you located

the right person, but still they're unlocated because it's not the right person and they're not going to respond 

in that context.”) (statement of Dwayne K. Butler, University of Louisville). But the test is whether the 

user has “located” the owner, not whether the owner has answered requests for permission. 

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In addition to these minima, the comments and discussions we have held with 

interested parties suggest some additional factors to guide the inquiry into whether a 

search was reasonable. A discussion of several of these factors follows. 

The amount of identifying information on the copy of the work itself, such as an 

author’s name, copyright notice, or title. The most obvious starting point for any 

investigation of a work’s ownership is the information on the work itself, such as a name

of the author, or the publisher or a copyright notice. Several commenters pointed out that 

with some types of works, such as a print of an old photograph, the copy contains no 

information whatsoever about its creator, let alone a current copyright owner.351 In such 

cases, the reasonably diligent steps a user might take to find the owner will likely be very 

limited. In contrast, most published books, even older ones, contain at least the name of 

the author and publisher, and often an address for the publisher, and a user would be 

expected to follow these leads in a reasonably diligent effort to find the current copyright 

owner. 

For authors and copyright owners, marking copies of their works with identifying 

information is likely the most significant step they can take to avoid the work falling into 

the orphan works category. This is particularly true for works of visual art, like 

photographs and illustrations, that otherwise do not contain text or other information that 

a user can rely on to help determine the identity of the copyright owner. Nothing in the 

Office’s recommendation would make such markings mandatory – in the absence of such 

information, a reasonable search by the user might very well locate the copyright owner. 

Nevertheless, the presence and quality of the information on particular copies will be a 

highly relevant fact as to whether a reasonable search will find the copyright owner. 

The lack of identifying information may not be as relevant where the user is using 

an unauthorized copy of a work, such as a digital image of a photograph pulled from a 

web site operated by someone other than the author. In such a case the identifying 

information placed on the work by the author might have been stripped, intentionally or

unintentionally, by the person who made the copy. The user should be expected to be 

more diligent in those circumstances in trying to find the owner than in a case where he is 

using an authorized copy that does not contain identifying information. 

 351 See, supra, page 23. 

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Whether the work had been made available to the public. Typically, works that 

have been published or otherwise made available to the public contain identifying 

information that must be investigated by the user, as described above. Also, published 

status typically indicates that the author and publisher, at least at one point, had an intent 

to exploit and commercialize the work, and may still be doing so. In this case, the user 

should be expected to do more to find the owner than for works that have not been made 

available to the public and that do not have any identifying information on them. 

The Notice of Inquiry in this proceeding asked whether unpublished works should 

be excluded from any system to address orphan works. A good number of commenters 

strongly opposed exclusion of unpublished works, while a handful agreed with the 

exclusion to preserve the author’s right of first publication and privacy interests against 

publication where that author cannot be located.352 A common suggestion indicated that 

the unpublished nature of a work should be a factor to consider in assessing whether the 

search for the author was reasonably diligent. 

Our recommendation does not categorically exclude unpublished works from

being subject to the orphan works provision, for several reasons. First, the determination 

of whether a work is published or unpublished, particularly for older works subject to the 

1909 Copyright Act, can be anachronistic, difficult and uncertain, and to make orphan 

work status contingent on this determination would perpetuate uncertainty about the use 

of works rather than ameliorate it. Also, many comments indicated that a large number 

of works that have unlocatable copyright owners, such as decades-old photographs and 

letters contained in archives, would likely fall into the unpublished category, and thus 

excluding them would unreasonably limit the scope of effectiveness of the orphan works 

provision at facilitating access to material of scholarly and public interest. 

Moreover, when one examines the authorial interests at stake with unpublished 

works in the context of orphan works, the risk of harm to those interests is probably very 

low. As we considered the issue, there appeared to be two main interests of the author 

that are at stake with the issue of unauthorized publication of unpublished works. First, 

the professional creator, for artistic or business reasons, might not want his unpublished 

material made public, thinking that his reputation might suffer if a poorly executed draft 

 352 See, supra, page 79. 

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receives attention. Second, the privacy of the author might be harmed when sensitive, 

non-public information (such as a personal diary) is made public without the consent or 

control of the author. 

When placed in the context of the orphan works situation, however, the likelihood 

that such harm will result is reduced substantially. Recall that the author’s remedies 

would be limited only if the author cannot be found through a reasonably diligent search. 

Thus, with respect to the first interest of protecting the author’s professional and creative 

interests, so long as the author takes steps to be locatable, such as by marking copies with 

his name and contact information, maintaining a web site with contact information, 

and/or enlisting an agent or other easily located representative, a user would be able to 

find the author and not publish the material under the limitation on remedies for orphan 

works. Indeed, the fact that an author has a public reputation that he feels might be 

compromised by publication of unpublished material almost certainly indicates he would 

be locatable by prospective users.353

With respect to the second interest regarding privacy, it may be the case that the 

author does not have any creative public reputation he seeks to protect, and thus is not 

naturally making himself known and locatable to prospective users. The author may have 

forgotten about or be unaware of the unpublished material that the user plans to publish, 

such as a long-lost diary or letter sent decades earlier. However, it is our view that the 

privacy interest is valid only during the lifetime of the author, a time during which the 

prospective user should be able to at least locate him. 

Thus, we do not recommend excluding unpublished works from the orphan works 

system. As to the suggestion that a work’s unpublished nature should be considered in 

assessing the reasonableness of the search, we conclude that if any special rule should be 

applied regarding a reasonably diligent search involving unpublished material, it should 

 353 See July 26 Roundtable Tr. at 73-74 (“The unpublished works that we're talking about are 

works in which the creators or the rights holders cannot be identified. I think there are going to be

unpublished works all the time where the recording artist has decided not to put that track on the album but

we'll be able to identify who the artist is or who the publisher is and go through a normal sort of copyright

negotiation process if someone wants to use those tracks. I think the same thing is true for Salinger letters. 

We know who Salinger is. We never see him but we know he's there, or his estate is there. I just want to

drill down on the issue of unpublished works. The only unpublished works that we're talking about

including in this proposal in the orphan works designation are those which the creator or rights holder can't 

be identified.”) (Statement of Mike Godwin, Public Knowledge). 

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be that where the user can reasonably conclude that the author of the work is still alive, 

she should be expected to undertake a higher burden to locate that owner than for other 

types of unpublished works, given the privacy interests at stake.354 It should be noted 

that even if the orphan work limitation on remedies might apply to some unpublished 

material, non-copyright laws such as privacy might apply to the publication of the 

material, and nothing in our recommendation should affect the application of such 

laws.355 Indeed, many proponents of including unpublished works in the system touted 

the presence of privacy laws as sufficient to protect the interests of authors in 

unpublished works.356 Finally, to the extent it turns out that, in practice, the orphan 

works amendment has prompted inappropriate and damaging publication of unpublished 

works, we have recommended a sunset provision which would require Congress to reauthorize the amendment, and these issues can be revisited at that time or earlier if the

problems arise earlier. 

The age of the work, or the dates on which it was created and made available to 

the public. In the Notice of Inquiry, we asked commenters for their views on whether the 

age of a work should be a defining criteria for an orphan work, such as excluding works 

that had been published within the past 25 years or 50 years. Somewhat to our surprise, 

the vast majority of commenters357 said that there should be no specific age requirement, 

but rather the age of the work should be but one factor that is considered in determining 

whether the search performed by the user was reasonable. For example, older works will 

likely have identifying information on them that may no longer be relevant, such as the 

name of a defunct publisher or portrait studio, so in those circumstances a user might 

have fewer avenues of investigation than with a newer work with more current 

 354 This rule should only apply to unpublished works owned by natural person authors, and not to

corporate authors under work made for hire arrangements. Such corporate authors do not have privacy

interests, and are otherwise more likely to take steps to be locatable for reasonably diligent users. 

355 Note also that fair use might apply to permit the publication of an unpublished work, as the 

1992 amendment to section 107 makes clear that “[t]he fact that a work is unpublished shall not itself bar a 

finding of fair use if such finding is made upon consideration of all the above factors.” 17 U.S.C. § 107.

See also July 26 Roundtable Tr. at 83 (“The issue of so-called [right of] first publication some people might

be surprised to find was not really much of an obstacle for us to get over once we went back and considered

that Congress in an early 1990's amendment had made it clear that the fact that a work is unpublished is 

simply one factor to consider when applying the fair use calculus ....”) (Statement of Allan Adler, AAP). 

356 See, supra note 270 (citing comments). 

357 See, supra note 264 (citing comments). 

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information. This is one way the age of the work might figure into the determination of 

whether a search was reasonable. 

Whether information about the work can be found in publicly available records, 

such as the Copyright Office records or other resources. One of the most important 

factors in determining whether a search was reasonable is the extent to which information 

about the copyright owner’s identity and location are available in publicly available 

registries, databases, or other sources. The most prominent of such sources would be 

Copyright Office records, and it would seem that only in the very rare case would a 

reasonable search not include a review of Copyright Office records for information about 

a copyright owner’s identity and location.358

In addition, there currently exist other non-governmental resources with author 

and ownership information, which would likely be part of any reasonable search. For 

example, ASCAP and BMI are two primary resources for information about musical 

works, and SoundExchange might be a source for information about sound recordings. 

The Authors Guild co-founded a registry of author information, the Authors Registry, 

which will undertake to determine contact information for an author in the registry.359 In 

each of these sectors, it would seem necessary that a reasonable search would include 

consulting these organizations for information about the work at issue. 

As noted above, ideally the orphan works legislation would prompt more groups 

to start creating sources of information that could be easily accessed and searched by 

users seeking to find the copyright owners of works they wish to use. In some

circumstances, a particular source could become de facto a necessary component of a 

reasonable search, such that failure to consult it would essentially disqualify the user 

 358 Many commenters noted the fact that many Copyright Office records (most notably registration 

and renewals from before 1978) are not available via online search services, and that making these records

available online would help users seeking information about owners, especially for older works. As was

noted in the roundtable discussions, the Copyright Office has commissioned a feasibility study for the 

process of converting these records to online form. However, we would like to stress that the paper records 

are available to the public, and that Office provides research staff that will research them for a fee, as will 

private search firms. It should also be noted that, while providing online access would have several

benefits generally – such as easier access to records that would clarify whether a work is protected by 

copyright – the extent to which making these records available online would help locate orphan works’ 

owners is not entirely clear, given that in many cases an old pre-1978 registration record contains outdated 

information that was useful only 40 years ago. This situation is yet another reason that a flexible search 

standard is needed to accommodate the current state of the resources available to the user. 

359 Authors Guild (R135) (describing Authors Registry). See also http://www.authorsregistry.org/. 

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from satisfying the reasonable search requirement. As we explain below in the 

discussion of the proposal for more formal, government-operated registries, it is our view 

that privately-operated registries like those mentioned would be much more efficient and 

nimble, able to change more easily in response to the demands of the marketplace and its 

participants, and to changes in technology surrounding the works and their uses. 

Also, publicly available sources for author and owner information need not be 

solely the province of registries operated by collective organizations. An individual 

author can maintain a website with identity and location information that is found 

through use of the most common search engines. The reasonable search determination 

should be flexible enough to allow individual creators to make themselves known to the 

public seeking permission for use in whatever convenient ways the current state of 

technology allows. 

The role played by technology should also come into play in consideration of 

what is a reasonable search. With the advent of nearly ubiquitous high speed Internet 

access, e-mail, efficient, easy-to-use search engines and similar innovations, it has 

become much easier to identify and locate authors and copyright owners than it was 

merely 10 years ago. One important benefit of a flexible standard like the one 

recommended is that as new technologies come along that make finding owners easier, 

the standard for what is a reasonable search can change to reflect those changes in search 

tools. For example, 15 years ago it would not have been part of a reasonable search for a 

user in California to have discovered an advertisement in a local South Carolina 

newspaper placed by an author that contained information about that author and his work. 

However, today it would almost certainly be unreasonable for that same user not to have 

found the author’s website if it were one of the results from a simple Internet search using 

information from a copy of the work. 

Another issue related to the registries or databases of owner information is the 

suggestion by a handful of commenters that the orphan works problem be addressed by 

formal registration with the Copyright Office – for example, some commenters proposed 

that if, after a certain period of time after publication of a work, the owner does not file 

with the Copyright Office current permission contact information, then the work falls into 

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the “orphan” category.

360 While in that category, users could use the work subject only 

to a very small license fee, which would be paid if the owner resurfaced. Proposals such 

as these would “centralize” the reasonable search effort to one location – the records of 

the Copyright Office; a user would need only check that registry to complete his search. 

After the owner resurfaced and registered with the Copyright Office, the work would no 

longer be in “orphan” status, and the owner would enjoy full rights under copyright again 

with respect to new users of the work. 

Although the idea of a centralized registry of ownership information has the 

superficial appeal of efficiency, there are several reasons why the Copyright Office has 

instead recommended the “ad hoc” proposal favored by the majority of commenters. 

First, the experience with the registration and renewal system of the 1909 Act, which is 

similar to the registration systems suggested here, indicates that its primary flaw was as a 

“trap for the unwary.”361 It is likely that the mandatory registration requirements in the 

proposed systems would contain similar traps. Second, administration and maintenance 

of such a system is not a simple task, and, based on our experience in operating a 

registration system, would entail greater costs and burdens than the proponents anticipate. 

Third, such a system would likely involve disputes over whether certain registrations 

covered certain works, just as there has been litigation today over the scope of particular 

copyright registrations.362 The nature of many copyrighted works, especially those 

combined with pre-existing material or other copyrighted works, makes categorization 

difficult, and much of the anticipated efficiency of a centralized registry would be lost to 

squabbles over compliance. These ambiguities about the scope of registrations would 

diminish the usefulness of the registry to users as well, as they could not be sure whether 

the information in the registry covered the works or the material they wish to use. All of 

these costs, in our view, would delay effective relief to the orphan works problem, and 

lack needed flexibility to adjust to changed circumstances. 

 360 See, e.g., Creative Commons (643) & Google (681).

361 See, supra, note 97 (describing legislative history regarding problems with the renewal system). 

362 See, e.g., Well-Made Toy Mfg. Co. v. Goffa Int’l Corp., 354 F.3d 112 (2d Cir. 2003) (analyzing

whether copyright registration for a toy doll covered the elements in a derivative work of the doll that were 

the subject of the infringement claim). 

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It is important to stress, however, that we believe that registries are critically 

important, if not indispensable, to addressing the orphan works problem, as we explain 

above. It is our view that such registries are better developed in the private sector, and 

organically become part of the reasonable search by users by creating incentives for 

authors and owners to ensure that their information is included in the relevant databases. 

Whether the author is still alive, or the corporate copyright owner still exists, and 

whether a record of any transfer of the copyright exists and is available to the user. In

Section III, we recounted the common complaints from many users exhibited in this 

proceeding over trying to find the copyright owner in the situation where the author has 

died or the original publisher has gone out of business. Given that copyright is treated as 

personal property,363 many commenters explained that trying to trace the transfer of title

in these situations is frustratingly difficult – e.g. authors do not have wills or otherwise do 

not specify how the copyright is to be devised to their heirs, bankruptcy proceedings do

not mention how the copyright assets are distributed. Moreover, since recordation of 

transfer documents in the Copyright Office as a prerequisite to suit for infringement was 

abolished in 1988,364 a user often does not have access to the documents that might 

explain who currently owns the copyright in the work. In light of this situation, it is 

important that the reasonable search determination account for situations like those 

described above by recognizing that just because a user has identified who the owner of a 

work was at some point in the past does not mean that the search has “located” the owner 

for purposes of seeking permission and that the user is no longer eligible for the 

limitation on remedies for orphan works. 

Conversely, users should make all reasonable efforts to identify and locate the 

copyright owner, including efforts to contact individuals involved in the creation of the 

work who probably are not legal owners of the copyright. For example, if the user 

determines that the last known owner of a copyrighted motion picture was a production 

company that is no longer in business, a reasonable search would also include trying to 

contact the director, screenwriter, lead actors and other individuals prominently involved 

in the creation of the work to try to locate the current copyright owner, even though these 

 363 17 U.S.C. § 201(d). 

364 See Berne Convention Implementation Act, Pub. L. No. 100-568, 102 Stat. 2853 (1988). 

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individuals are not likely to be owners of the copyright in the work.365 Similarly, for 

sound recordings, a reasonable search would involve contacting the recording artist if the 

record company that produced the work no longer exists and tracing the chain of title has 

hit a dead end. 

The nature and extent of the use, such as whether the use is commercial or

noncommercial, and how prominently the work figures into the activity of the user. How 

the work is to be used is also highly relevant to whether the search is reasonable. If a 

work is to play a prominent role in the user’s activity, then more effort to find the owner 

should be required. Similarly, more effort should be required where the use is 

commercial as opposed to non-commercial. Also, the more broadly the work is 

disseminated, the more effort to locate the owner should be required, even where the user 

is a non-commercial entity. 

For example, if a commercial publisher plans to use a photograph for the cover of 

a new book, it should expend more effort to find the owner than when it simply 

reproduces the photograph among many others in smaller form on the inside of the book. 

Similarly, where a museum plans to use a photograph in advertisements and brochures 

for a new exhibit, and on the cover of the accompanying coffee table book, then such use 

demands more effort to find the copyright owner than if simply making that work 

available as part of a large collection on a website. By contrast, where a user seeks to

copy an old personal photograph from a long lost studio for personal use or limited 

dissemination, a reasonable search would involve less effort than in those situations 

described above. Also, the amount of searching necessary to satisfy the “reasonably 

diligent search” requirement is a work-by-work analysis, an important consequence of

which is that the amount of searching necessary for use of a particular orphan work will 

not be related to the number of other works the would-be user intends to use in addition 

to the orphan work in question. 

 365 Directors Guild of America (“DGA”) (621). The DGA requested that orphan works’ users be 

required to obtain permission from the director of a motion picture if the copyright owner of that work

could not be located. To include such a provision in the recommendations would go well beyond the scope

of this study, and touch upon fundamental issues about how rights and interests in the exploitation of

motion pictures are apportioned. The guilds’ concern, however, about how directors’ works might be used

against their wishes in reliance on the orphan works provision, should prompt them to take steps, in their 

agreements with motion picture production companies, to ensure that the current copyright owner of a film

is known and easily found from a reasonable search. 

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When considering circumstances surrounding the use, it is important that the 

focus be on the nature and extent of the use in addition to the attributes of the user. 

Although the fact that a user might be an individual or non-profit entity with minimal 

resources is part of the circumstance of the use, where the use involves widespread 

dissemination of a work that would compete with authorized sales and commercial 

exploitation, a relatively high level of diligence should be required, regardless of the 

resources of the user. In considering the level of diligence required to find the owner 

when planning to use a work, the user should carefully consider the extent of the use he 

intends to make.366

ii. Developing Reasonable Search Criteria 

Another important issue that surfaced in discussions with stakeholders is exactly 

how factors like those described above should be developed and made part of the system 

for orphan works. Should they be (i) left to the courts to decide on a case-by-case basis; 

(ii) made part of the statute, like “fair use” and section 107; (iii) embodied in legislative 

history; (iv) part of a Copyright Office regulation; or (v) embodied in another instrument, 

like voluntary guidelines or best practices developed by private stakeholders? There was 

some concern expressed in the comments and roundtables that a general standard like the 

one included here might be too uncertain for users to apply, particularly unsophisticated 

users, and thus not help clarify what a user is to do in the orphan works situation. 

To help address this concern, many commenters expressed support for the 

development of guidelines for reasonable searches in the different sectors (say, for 

example, guidelines for searches related to motion pictures) through further discussions 

among the groups in such sectors, perhaps under the auspices of the Copyright Office. 

Any such guidelines can and should address the factors described above, and we favor 

the development of guidelines or even binding criteria if need be on a sector-by-sector 

basis, and strongly encourage the parties to engage in those discussions. 

A question was raised as to whether the results of these voluntary discussions on 

guidelines should be made formal in some way, such as through a rulemaking proceeding 

in the Copyright Office to adopt the guidelines as criteria for a reasonable search. We 

 366 Note that in our recommendation, as described below, whether a use is commercial or noncommercial will also be relevant to scope of remedies that will be available in a particular orphan works 

situation should the copyright owner resurface. See infra, page 115. 

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anticipated that users would be concerned that a general reasonable search standard 

would not provide enough certainty – that is, without a defined checklist of actions that 

would constitute a reasonable search, a user could never know for certain whether she 

had done enough to find the copyright owner.367 For this reason we explored the 

possibility of giving the Copyright Office the authority to define reasonable search 

specifically in regulations, after hearing from the interested parties in a particular sector. 

Much to our surprise, most of the groups involved objected to this suggestion, 

arguing that informal, voluntary processes would involve more collaborative discussion 

and result in more useful guidelines being developed.368 In fact, groups that are typically 

users of copyrighted works and who might be thought to desire more certainty over 

exactly what entails a reasonable search, such as libraries and archives, generally were 

not in favor of formal rulemaking related to the reasonable search component. 

As a result, the Copyright Office has decided at this time not to propose that the 

orphan works legislation provide it with any rulemaking authority. One concern we had 

about developing such binding criteria is that invariably it would be incomplete and 

outdated quickly, as new technologies and sources of information are developed over 

time.369 For example, if one in 1993 were to develop reasonable search criteria, it 

probably would not have included the use of Internet search engines like Yahoo! and 

Google which would become available just a few years later.370 We do believe, however, 

that a description of the general factors like that above be included in the legislative 

 367 See, e.g., July 26 Roundtable Tr. at 17 (“The biggest problem with a reasonable effort search is 

you never -- you don't know if [what] you've done will satisfy a court and that what you've done really 

would be considered a reasonable effort search. You don't have the certainty.”) (Statement of Jonathan 

Band, Library Copyright Alliance). 

368 See July 26 Roundtable at 31-32 (comments of Library Copyright Alliance and Public 

Knowledge objecting to formal adoption of guidelines by Congress, at least initially). 

369 See July 26 Roundtable at 20-21 (“I think the other issue is that when you define so

specifically, especially if it were defined in statute what a diligent search is, then suddenly you lose 

flexibility. What is a diligent search today? We may learn in a year or in two years through experience that 

is not going to be the standard that we want to hold this by. There has to be some flexibility.”) (Statement

of David Trust, Professional Photographers Association)

370 See July 26 Roundtable at 45 (“I would just like to caution that it's important to keep in mind

that the technology that we live with every day and the Internet and database technology and computer 

technology is evolving very rapidly. A solution to these problems that may seem appropriate today five 

years from now may seem completely ridiculous.”) (Statement of Michael Copabianco, SFFWA) 

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history to any orphan works legislation so that some guidance is available to copyright 

owners, users and the courts in applying the provisions. 

Without any formal process for establishing criteria for reasonable searches, 

participants in the various sectors would be free to develop their own voluntary 

guidelines for reasonable searches. Ideally these would be collaborative between user 

and owner groups, but they could also be separate endeavors. In either case, the 

individual groups could publish the results of their efforts for users to consult when 

conducting searches. For example, a library association could publish its best practices 

or guidelines for users trying to find the owner of a photograph, and a photography 

association could publish its own separate set of guidelines. None of these guidelines 

would be definitive and dispositive – in any given circumstance a user who follows just 

one set might not be conducting a reasonably diligent search. If there were litigation over 

that use, a court might analyze the various sets of guidelines, and, in determining whether 

the particular search was reasonable, opine on the quality or lack thereof of one or more 

guidelines. In any event, users would benefit from various sources of information as to 

how to conduct searches, even if this information comes from multiple sources. If a more 

formal system for developing criteria turns out in practice to be warranted, that issue can 

be revisited during reauthorization at the time of the legislation’s sunset provision. 

b. The Requirement of Attribution 

We also recommend one other threshold requirement for a user to qualify for the 

orphan works limitations on remedies: throughout the use of the work, the user must 

provide attribution to the author and copyright owner of the work if such attribution is 

possible and as is reasonably appropriate under the circumstances. The idea is that the 

user, in the course of using a work for which he has not received explicit permission, 

should make it as clear as possible to the public that the work is the product of another 

author, and that the copyright in the work is owned by another. While only a handful of 

commenters proposed a requirement along these lines,371 we found several good reasons 

to support this requirement. 

 371 See, e.g., Museum Comments (610), suggesting that the user apply an Orphan Works (or 

“OW”) notice to the copy that incorporates the orphan work. Other commenters opposed “user” formalities 

such as notice or registration of intent to use, in part out of competitive concerns. See, e.g. AAP (R85). As

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First, it provides more notice to authors and copyright owners that their work is 

being used, and might facilitate them contacting the user and working out a voluntary 

agreement about the use of the work. The desire to put owners and users together should 

not end with the user’s reasonable search and commencement of use. Attribution will 

help facilitate the marketplace transactions that are the primary goal of the recommended 

solution to the orphan works problem. 

Second, attribution is a critically important aspect of copyright for authors and 

owners, particularly individual authors. From our discussions with various stakeholders, 

in the situation where an author is found after a search prior to use, many times the author 

consents to a royalty-free use, provided that the user provides proper attribution. Indeed, 

the Creative Commons has published information that for those authors who adopt one of 

the many forms of Creative Commons licenses, about 94% of them opt for a license that 

requires attribution.372 Thus, even among a group of creators that are willing to permit 

wide dissemination and re-use of their works, attribution is an essential and important 

part of preserving the author’s interests in the work. 

Third, given that any user would have to perform a reasonably diligent search to 

find the owner in the first place, she would likely have already developed the information 

that would go into an attribution. Indeed, many user groups who participated in this 

proceeding, such as the museums, universities and libraries, indicated to us that providing 

information about the works they use is part of their normal course of operation – their 

mission in many respects is to provide the public with this type of historical context for 

the materials they make available. Accordingly, this requirement would not, therefore, 

impose an unreasonable burden on the user. 

Fourth, representatives of individual authors expressed strong concern that any 

orphan works regime would be abused by users who simply use it to hide their clear 

intent to infringe works, or by those who actually did not perform a reasonably diligent 

search. Requiring attribution would help curb abuse, because a blatant infringer would 

 explained in this Section, attribution is somewhat different from the formalities proposed and addressed by

the comments in this proceeding. 

372 See Brief of Creative Commons filed in MGM Studios, Inc. v. Grokster, Ltd., No. 04-480, at 27

(S. Ct. Feb. 2005) (available at http://www.copyright.gov/docs/mgm/creative-commons.pdf); See also

supra note 137 (referencing documentary filmmakers’ “Best Practices for Fair Use,” which makes repeated 

reference to attribution as part of the best practices). 

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not likely be inclined to provide notice to the copyright owner in the situation where he

has not performed a proper search. It will also serve to remind users that the orphan 

works provision is not an exemption from copyright – they still have obligations to the 

copyright owner should she resurface after the use has begun. 

The requirement of attribution should be a flexible rule, and should not be 

interpreted in a strict way to unnecessarily create another obstacle to the use of orphan 

works. As described, many orphan works situations involve untitled, unattributed works 

for which determining even the identity of the author may not be possible. The 

recommendation includes language to make sure that in such situations, the user is still 

eligible for the orphan works limitations on remedies. Similarly, the information 

contained in the attribution should be reasonable under the circumstances – formalistic 

errors or similar omissions in the attribution should not be cause to disqualify the user 

from the orphan works category. 

c. Other Alternatives Considered 

There were two other mechanisms proposed to help address the orphan works 

issue that we considered but ultimately concluded would not be appropriate to 

recommend at this time. First, some commenters suggested that users should be required 

to file with the Copyright Office some public notice that they have conducted a 

reasonable search and intend to use an orphan work.373 In essence, a user would be 

required to certify publicly that he has been unable to locate the copyright owner before 

his planned use can commence. These commenters argue that there are several benefits 

to such a system. First, it would help curb abuse of the orphan works provision, in that 

users who did not perform a reasonable search would be less likely to file a notice. 

Second, it would give copyright owners who are actively exploiting their works an easier 

means of monitoring searches to determine if one of their works was being used. Third, 

it would allow users more information about searches being conducted by others, which 

will help them in their own searches for copyright owners. 

Several groups opposed this proposal, most notably commercial book publishers. 

They claim that such notice would impair their competitive position with other 

publishers, who would use the filings to determine what books or types of books they 

 373 See notes 241-242, supra. 

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plan to publish. Also, they argued that with respect to fair use of works, they do not have 

to give notice that they are invoking the exemption, and they should not be under a 

similar obligation for the use of an orphan work. 374

While a centralized registry of user certifications or notice of intent to use sounds 

promising on the surface, upon closer examination there are potential pitfalls that 

outweigh the benefits at this time. First, as we described with owner-based registration 

systems, many types of works are difficult to classify and accurately represent in a textual 

database like the one proposed. For example, for untitled photographs and other visual 

works, there is a real possibility that a textual database will not be very useful to owners 

and users looking for works. For such a database to work, it would likely need to have a 

copy of the work included in the record and displayed to searchers, a requirement that 

will increase the cost and complexity of the system.

375 Second, the system might place 

an inappropriate burden on users, particularly ones with large collections of orphan 

works. For example, a typical situation raised in the comments was an archive that has 

tens of thousands of photographs it wished to make available. Even a very modest filing 

fee for such notices would probably make it prohibitive for the user to make the works 

available.376

In sum, it is our conclusion that recommending such a registry at this time would 

be premature. We believe the truly “ad hoc” system – where users simply conduct a 

reasonable search and then commence use, without formality – is the most efficient way 

to proceed. As noted below, however, we also propose a sunset provision to allow 

Congress to reexamine the question after ten years to see if additional mechanisms like a 

user registry might be more practical and beneficial. 

The other mechanism proposed by some commenters is a requirement that orphan 

works users pay into an escrow before commencing use. The amount collected in the 

escrow would be paid out to copyright owners if they resurface. This proposal is similar 

 374 July 26 Roundtable Tr. at 59-61 (statement of Allan Adler, AAP). See also, e.g., AAP (605) & 

AAP (R85). 

375 Even if the works are displayed, it is also difficult to index them in a way that is meaningful for 

users trying to locate an image with no identifying textual data. 

376 The registry might address this problem with group or collective notice, but that likely creates 

problems for searchers try to find one work among the collection represented by the notice. 

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to the system in Canada that was mentioned in the Notice of Inquiry.377 The proponents 

of an escrow requirement, mostly individual authors like illustrators, recording artists and 

photographers, argue that it would prevent abuse of the orphan works system and create a 

practical way for individual copyright owners to obtain compensation for the use of their 

works, which according to them is currently impractical due to the high cost of litigation. 

Most other commenters strongly disfavored the Canadian approach, and also opposed an 

escrow system of any kind. 

In our view, an escrow requirement in an “ad hoc” reasonable search system like 

we recommend would be highly inefficient. Every user would be required to make 

payment, but in the vast majority of cases, no copyright owner would resurface to claim

the funds. Thus, most if not all of the funds collected would not be distributed to the 

authors, and thus the system would not actually facilitate payments between users and

owners of orphan works. Also, establishing the amount to be paid would be a difficult 

and time-consuming task. Moreover, the escrow requirement might needlessly 

discourage legitimate orphan works users from making use of works simply because of 

the administrative cost or the volume of works they wish to use, as in the case with a 

notice of intent to use registry. 

We are sympathetic to the concerns of individual authors about the high cost of 

litigation and how, in many cases, the individual creator may have little practical recourse 

in obtaining relief through the court system, particularly against infringements involving 

small amounts of actual damages. This problem, however, has existed for some time and 

goes beyond the orphan works situation, extending to all types of infringement of the

works of individual authors. While there are some mechanisms in place to help address 

the problem, such as enforcement by collective organizations or timely registration to 

secure the availability of statutory damages and attorneys fees, we believe that 

consideration of new procedures, such as establishment of a “small claims” or other 

inexpensive dispute resolution procedure, would be an important issue for further study 

by Congress. It is not, however, within the province of this study on orphan works. 

 377 70 Fed. Reg. 3739, 3741 (Jan. 26, 2005). 

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d. The Limitation on Remedies 

If a user meets his burden of demonstrating that he performed a reasonably

diligent search and provided reasonable attribution to the author and copyright owner, 

then the recommended amendment would limit the remedies available in that 

infringement action in two primary ways: first, it would limit monetary relief to only 

reasonable compensation for the use, with an elimination of any monetary relief where 

the use was noncommercial and the user ceases the infringement expeditiously upon

notice. Second, the proposal would limit the ability of the copyright owner to obtain full 

injunctive relief in cases where the user has transformed the orphan work into a 

derivative work like a motion picture or book, preserving the user’s ability to continue to 

exploit that derivative work. In all other cases, the court would be instructed to minimize 

the harm to the user that an injunction might impose, to protect the user’s interests in 

relying on the orphan works provision in making use of the work. These 

recommendations are discussed in detail in this section. 

i. Limitations on Monetary Relief 

A vast majority of the commenters in this proceeding agreed that the prospect of a 

large monetary award from an infringement claim, such as an award of statutory damages 

and attorneys’ fees, was a substantial deterrent to users who wanted to make use of an 

orphan work, even where the likelihood of a claim being brought was extremely low.378 

Most of the proposals for addressing the orphan works problem called for clear 

limitations on the statutory damages and attorneys’ fees remedies in cases involving 

orphan works. Our recommendation follows this suggestion by limiting the possible 

monetary relief in these cases to only “reasonable compensation.”379

 378 See supra note 323. The likelihood of statutory damages or attorneys’ fees being awarded in

an orphan works case is probably low, given that for those remedies to be available, the work must have 

been registered prior to infringement, see 17 U.S.C. § 412, and if a work is registered it is unlikely that the 

copyright owner is unlocatable through a diligent search. Nevertheless, there is the possibility that an old

registration might exist and is not found on reasonable search (e.g. for a photograph whose title in the 

registration is not descriptive of the work) or contains outdated information, and thus the prospect of

statutory damages might be more likely in some circumstances. 

379 The Copyright Act elsewhere provides a limitation on remedies to reasonable compensation in 

circumstances somewhat analogous to the orphan works situation. Section 104A(d)(3) addresses the 

situation where someone has created a derivative work based on a foreign work that was in the public

domain but has been restored in 1996. It protects the interests of the “reliance party” who created the 

derivative work creator by allowing the party “to continue to exploit that derivative work for the duration of

the restored copyright if the reliance party pays to the owner of the restored copyright reasonable 

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The term “reasonable compensation” is intended to represent the amount the user 

would have paid to the owner had they engaged in negotiations before the infringing use 

commenced. In most cases it would equal the reasonable license fee as that concept is 

discussed in Judge Leval’s opinion in Davis v. The Gap, Inc., 380 which explains why a 

reasonable license fee is appropriate in circumstances very similar to the orphan works 

situation where the user has sought to find the owner through diligent search: 

The Gap was not seeking, like [other] defendant[s], to surreptitiously steal 

material owned by a competitor. ... [T]he Gap and Davis could have 

happily discussed the payment of a fee, and ... Davis’s consent, if sought, 

could have been had for very little money, since significant advantages 

might flow to him from having his [work] displayed in the Gap’s ad. 

Alternatively, if Davis’s demands had been excessive, the Gap would in 

all likelihood have simply eliminated Davis’s [work] from the photograph. 

Where [a prior court case was] motivated by its perception of the 

unrealistic nature of a suggestion that the infringer might have bargained 

with the owner, ..., such a scenario was in no way unlikely in the present 

case.381

As that decision makes clear, reasonable compensation would equal what a 

reasonable willing buyer and reasonable willing seller in the positions of the owner and 

user would have agreed to at the time the use commenced, based predominantly by 

reference to evidence of comparable marketplace transactions. As the Davis case 

suggests, the burden is on the copyright owner to demonstrate that his work had fair 

market value, and such assertion cannot be based on “undue speculation.”382 It is not 

enough for the copyright owner to simply assert the amount for which he would have 

licensed the work ex post; he must have evidence that he or similarly situated copyright 

owners have actually licensed similar uses for such amount.383

 compensation for conduct which would be subject to a remedy for infringement but for the provisions of

this paragraph.” 17 U.S.C. § 104A(d)(3)(A). The section also includes some guidance on how “reasonable 

compensation” should be determined, by looking to the harm to the actual or potential market value of the 

work and the contributions of the copyright owner and reliance party in creating the derivative work. 

380 246 F.3d 152 (2d Cir. 2001). 

381 Id. at 164. We use the term “compensation” instead of “license fee” to encompass other forms 

of payment that might be made in certain situations, such as a simple sales price for additional reprints of a 

photograph. 

382 See 246 F.3d at 166. 

383 In Davis, the court rejected the plaintiff’s claim that he would have licensed the defendant’s use 

for $2.5 million as “wildly inflated”; instead, the court looked to actual, similar transactions the copyright

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While many commenters supported a general remedy like “reasonable 

compensation,” some expressed concern about the impact that any monetary remedy at 

all might have on their ability to go forward and use orphan works. For example, 

museum representatives explained that they would like to use hundreds or even thousands 

of orphan works in their collections, so even a minimal monetary award might be 

prohibitive. Libraries and archives made similar observations, given their desire to make 

large collections of orphan works accessible. To address these concerns, the museums 

have proposed that in the orphan works situation the user receive a time-limited 

exemption, one that last only 5 years from the reasonable search, with no monetary 

payment required. Others have proposed a low cap on monetary damages, such as $100 

or $500 per work. They believe this would give them more certainty about their potential 

exposure and thus more confidence using the orphan work. 

On the other side of this issue were individual copyright owners. While corporate 

copyright owners were generally in favor of a reasonable compensation approach, 

individual authors like photographers, illustrators and graphic artists noted that under 

current conditions, obtaining a lawyer to even file an infringement case is prohibitively 

expensive, so much so that only where statutory damages are available is it possible to 

file a case. If compensation were limited to only a reasonable royalty, they fear that it 

will likewise be practically impossible even to recover that compensation given the cost 

of litigation.

In our view, a general standard of reasonable compensation is the right solution to 

this problem, for several reasons. First, with respect to the concern about a chilling effect 

of any monetary remedy, it must be noted that in nearly all cases where a diligent search 

has been performed, the likelihood of a copyright owner resurfacing should be very low, 

so that no claim for compensation is ever made. Second, it should be clear that 

“reasonable compensation” may, in appropriate circumstances, be found to be zero, or a 

royalty-free license, if the comparable transactions in the marketplace support such a 

finding. Indeed, given that the burden is on the copyright owner to produce evidence of 

 owner had concluded (a license for a cover on a magazine for $50) to conclude that a reasonable license fee 

would be in the range of $50. 246 F.3d at 161. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

market value for the work, it is unlikely that for orphan works, where by definition the 

owner was not locatable by reasonable search, the plaintiff could produce such evidence. 

Our discussions with museums, universities and libraries indicated that in many 

orphan works situation a low or zero royalty is likely to be the reasonable compensation. 

For example, a common situation is the following: A university would like to republish 

an article from an encyclopedia, and it has received permission (royalty-free) from the 

publisher, but the photographs contained in the article are owned separately by individual 

photographers. Nineteen of the twenty photographs have identifiable owners, all of 

whom grant a royalty-free license when contacted by the university. The twentieth 

photograph is similar to the other nineteen in type, quality and subject matter, but is an 

orphan work, and the university relies on the proposed legislation in deciding to publish 

it. If the owner surfaces after publication, it is our view that the university has a good 

case that “reasonable compensation” in that situation is zero, given the other royalty-free 

licenses involved in publication of similar works in a similar context. Furthermore, to the 

extent some of the other photographs were licensed for payment, the university has some

certainty about the range of license fees it might have to pay for use of the orphan work. 

In addition, the nature of the user will come into play in such a determination – just as a 

museum might stress in negotiations with a copyright owner its non-profit status and its 

public service mission as justification for a low or no royalty payment, those factors 

could be considered by the court in assessing reasonable compensation. 

In addition, to make absolutely sure that the concerns of nonprofit institutions like 

libraries, museums and universities about monetary relief are assuaged, we recommend 

an additional limitation on monetary relief where the user is making a non-commercial 

use of the work and expeditiously ceases the infringement after receiving notice of the 

infringement claim. In that case, there should be no monetary relief at all. Libraries, 

archives and museums indicated that posting material on the Internet was a primary use 

they would like to make of orphan works, and that they would take down any material if 

a copyright owner resurfaced. This additional provision provides certainty about their 

exposure in that circumstance. If the organization wishes to continue making use of the 

work, it would have to pay reasonable compensation for its past use, and, as described 

below, for future use of the work. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

The language used to define commercial use (“direct or indirect commercial 

advantage”) is used throughout the Copyright Act,384 and we have added one example of 

a commercial use (“sale of copies or phonorecords of the work”) to make clear where 

reasonable compensation would be required, even from a nonprofit organization.385 The 

museum example is instructive. Most of the activities of a not-for-profit museum related 

to orphan works, such as posting the work on a website that is not supported by 

advertising or that generates other revenue, would be “without purpose of direct or 

indirect commercial advantage.” However, where the museum essentially acts as a 

publisher and the infringement consists of selling books, DVDs or other materials in its 

gift shop, that conduct would not fall within the exception in the recommendation, and 

such activity would require the museum to pay reasonable compensation to the owner if 

he surfaces. The amount of that compensation might still be zero or very low, based on

the evidence the owner must produce about the market value of the work and the 

evidence of license fees paid (or not paid) by the museum for similar uses of similar 

works. 

ii. Limitations on Injunctive Relief 

In addition to the limits on monetary relief, several commenters in this proceeding 

suggested that limitations on injunctive relief were needed as well. Most specifically, 

users who would like to create derivative works based on orphan works, most notably 

filmmakers and book publishers, stressed that the fear of an untimely injunction – 

brought just as the book was heading to stores, or just before release of the film – 

 384 See, e.g., 17 U.S.C. §§ 108(a)(1) (limiting exemption to reproduction and distribution “made 

without any purpose of direct or indirect commercial advantage”), 109(b) (limiting first sale doctrine for 

sound recordings and computer programs where they are rented “for the purpose of direct or indirect

commercial advantage”), 110(4) (exempting public performance of musical works for educational,

religious or charitable purposes where, among other conditions, the performance is made “without any

purpose of direct or indirect commercial advantage”) & 506 (defining one form of criminal infringement as 

willful infringement “for purposes of commercial advantage or private financial gain”). 

385 Some participants in the roundtables noted that nonprofit organizations can undertake both

commercial and noncommercial activities with respect to copyrighted works. See, e.g., August 2

Roundtable Tr. 51 (“As a librarian I very well understand our willingness to say let's deal with the 

noncommercial because we're doing this for the common good, for the public good, but let's be realistic. In 

today's university situation we're doing a lot of stuff that is commercial as well, and that starts to get us into

areas that we cannot make blanket distinctions that everything that is being done within an educational

institution is going to be for nonprofit, but we are in business. We are trying to make a living out of some 

of the stuff that we are holding and protecting.”) (statement of Christine Sundt, University of Oregon, 

College Art Association, Visual Resources Association) 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

provides enough uncertainty that many choose not use the work, even though the 

likelihood of such injunction is small.386 On the other hand, as noted above, many users 

who wish to make orphan works available on the Internet, such as libraries, museums and 

digital archives, are willing to “take down” material upon an owner resurfacing, so that 

facing even a full injunction was not as troublesome to these types of users. 

In light of these comments, we recommend that injunctive relief for infringement 

of an orphan work be limited in two ways. First, where the orphan work has been 

incorporated into a derivative work that also includes substantial expression of the user, 

then injunctive relief will not be available to stop the use of the derivative work in the 

same manner as it was being made prior to the claim of infringement, provided the user 

pays reasonable compensation to the copyright owner. Second, in all other cases, full 

injunctive relief may be available, but the court must to the extent practicable account for 

and accommodate any reliance interest of the user that might be harmed by an injunction. 

With respect to the first category, the language regarding “significant expression” 

is intended to exclude situations where the work is simply put into a collection of other 

works, like an electronic database. There is an argument under copyright law that such 

activity is the creation of a derivative work, but the intent in this provision is to apply to 

those situations where a user transforms an orphan work into a new work, such as taking 

a novel and turning it into a motion picture, or using a manuscript or photograph as part 

of a historical book. In those situations the user’s reliance interest is greater, and he has 

contributed new expression to the public benefit, and thus is entitled to more freedom

from injunctive relief. The scope of that freedom, however, is limited; the copyright 

owner retains full rights with respect to new derivative works, such as a sequel to the 

original motion picture. 

In contrast, a full injunction will still be available where a user simply republishes 

an orphan work, or posts it on the Internet without transformation of the content. Such 

users might still have incurred some costs or burden in making that work available to the 

public in that way, such as having printed 10,000 copies of a book that have yet to be 

 386 See, e.g., July 26 Roundtable Tr. at 243 (“As a book publisher I'm not going to take a risk of --

I'm not going to put it between the covers if the book has a likelihood of being enjoined 50 days later just as 

we are starting to sell copies and after we've printed X thousand copies.”) (Statement of Paul Slevan, 

Holtzbrinck Publishing). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

sold. The court is instructed to avoid unnecessary hardship on the user in those 

circumstances, say, for example, by allowing the unsold copies to be sent to retailers. 

e. Other Provisions 

We also recommend two other administrative provisions. First, a savings clause 

that makes clear that nothing in the new section on orphan works affects rights and 

limitations to copyright elsewhere in the Copyright Act, which is consistent with the 

structural approach on placing the provision in the remedies chapter. Second, we 

recommend that the provision sunset after ten years, which will allow Congress to 

examine whether and how the orphan works provision is working in practice, and 

whether any changes are needed. 

f. International Considerations 

The Notice of Inquiry asked questions about how any proposed solution to the 

orphan works issue would comport with the United States’ international obligations in the 

various copyright treaties. Those obligations are set forth in Section IV above, and 

because our recommendation does not exclude foreign works from its scope, it must 

comport with the United States’ international copyright obligations. We believe that one 

of the primary advantages of the ad hoc, reasonably diligent search approach is that it is 

fully compliant with international obligations. Because it requires users to find copyright 

owners and depends on whether they have been reasonably diligent in doing so, it does 

not impose any formalities on authors and copyright owners that condition the enjoyment 

and exercise of copyright protection. Moreover, the recommendation is not a new 

exemption or limitation to copyright that is applicable to all users or a certain class of 

users for all time – rather, it is a modification to the remedies that are available in a 

specific infringement case where a particular user has proven that certain circumstances 

exist. In this sense it is quite similar to existing provisions in section 504 that modify the 

available remedies in certain cases.387 Finally, we believe the modified set of remedies 

still preserves a wide range of meaningful relief to authors and copyright owners even in 

the orphan works situation, such as reasonable compensation and injunctive relief in most 

cases. 

 387 See supra page 49 (discussing section 504(c)(2)). 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

We are mindful that many countries monitor the activities of the United States in 

copyright law and may be influenced by any orphan works legislation that is passed to 

examine the question themselves. One concern that has been raised is that other 

countries, particularly those unwilling to deal with substantial piracy problems or looking 

to avoid protecting U.S. copyright owners in their country, might use the orphan works 

issue as a pretext for allowing weaker enforcement and remedies against pirate copyright 

operations.388 It is our hope that this Report and further Congressional deliberations on 

the topic will make clear the precise scope of this issue and make clear that any such 

efforts would in fact be a pretext, and that these deliberations will inform the 

consideration of legitimate orphan works studies by other countries. 

3. Applying the Recommendation to Orphan Work Uses 

To further explain how our recommendation would work in practice, this section 

takes the four general categories of users described in Section III and describes how the

recommended limitation on remedies would apply in each scenario. As noted in that 

section, we believe that nearly all orphan work situations are encompassed by one of 

those four categories, so that if our recommendation resolves users’ concerns in a 

satisfactory way, it will likely be a comprehensive solution to the orphan works problem. 

a. The Large-Scale Access User 

As described, the “Large-Scale Access User” is typically a library, archive or 

museum that has a large-number of works that it would like to make available to the 

public, such as through its web site or as part of an exhibition. Such users often deal with 

unpublished works that are parts of collections of material acquired through donations 

from individuals. In most cases the use of these materials is made as part of an overall 

effort to catalog, preserve and make the works accessible to the public. 

Assuming the user would want to make use of a work that goes beyond any 

statutory exemption such as fair use, the orphan works recommendation would require 

the user to perform a reasonably diligent search for the owner of the copyright in the 

work. This user might have several leads on finding the owner, given that it is probably 

already performing research into areas related to the work, such as the historical context 

 388 July 27 Roundtable Tr. at 206-7 (statement of Steve Metalitz, RIAA). 

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in which the work was created.389 Also, most users like these indicated to us that it is part 

of their mission to place the works in their historical context, which would include 

identifying and locating the creator and owner of the work. Upon completing its due 

diligence, the user could commence use of the work, which must include attribution to 

the author, if such attribution is possible, as appropriate under the circumstances. The 

user should make certain to document all of the steps taken to locate the owner and its 

attribution during use so that should the copyright owner surface, the user is able to 

demonstrate that it met the criteria for the orphan work limitations on remedies, and such 

evidence can be produced in the event of any litigation. 

If the owner surfaces and claims that the user is infringing his copyright, the user 

has several choices. First, it can assert any limitation or exemption from copyright that 

might apply to its activity. Second, it can produce the evidence of reasonable search and 

attribution that make it eligible for the limitation on remedies in the recommendation.390 

If the use was noncommercial, which is likely with this type of user, and if the user 

expeditiously ceases infringement – say, by taking the material down from its website – 

then it would be subject to no monetary remedy whatsoever.391 Moreover, because the 

infringing use has stopped, ongoing injunctive relief would be irrelevant. If the user has 

transformed the work and made it part of a film or book that it produced and is making 

available, it can continue to make use of that derivative work provided it pays reasonable 

compensation to the owner.392 In no case would the user face statutory damages or 

attorneys’ fees. 

This discussion looks at the situation from the perspective of infringement 

litigation ensuing. Ideally, litigation never occurs, but the owner and user negotiate in 

light of the available remedies and come up with a mutually acceptable resolution. For 

 389 As described above, if the user believes that the work is unpublished and the author still alive, 

it should make extra effort to find that author given the privacy concerns that might be at stake. 

390 See Recommended Statutory Language, section 514(a). 

391 See Recommended Statutory Language, section 514(b)(1)(A). 

392 See Recommended Statutory Language, section 514(b)(2)(A). To help minimize uncertainty

about the amount of “reasonable compensation” this user might have to pay, it should keep records of

transactions it has with known copyright owners who consent to use of their works in situation analogous to

the use made of the orphan work. To the extent many or most of these transactions involve no or small 

amounts, that evidence would go a long way to ensuring that the “reasonable compensation” is similarly

low, or even zero. 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

example, it might not be in the interest of the owner for the user to take down the material

from the website – instead, the owner might permit such ongoing use provided the user 

provide a link or other contact information for the owner, which would make it easier for 

other users to find that owner and help defeat other claims that the work is an orphan 

work. 

b. Subsequent Creator 

This user takes an orphan work and transforms it to create or include it as part of a 

derivative work. Some examples include a filmmaker who takes an old screenplay and 

modifies it to create a new film, a book publisher that takes a manuscript and has another 

author write a novel based on that manuscript, or a songwriter who uses a poem as the 

lyrics to a song he composes. In most cases this type of user will be making commercial 

use of the work, as it hopes to commercialize and exploit the derivative work it is 

creating. 

If the user performs a reasonably diligent search and cannot locate the owner, it 

can go forward with the use. It would be required to provide appropriate attribution to 

the author and owner, if it knows their identities, in the derivative work it is creating. It 

should also be prepared to pay reasonable compensation to the owner if she surfaces and 

makes a claim for infringement, given that in most cases the use will be commercial and 

not eligible for the elimination of monetary relief for noncommercial uses. The user can 

be confident, however, that if the owner surfaces – even at an inopportune moment like 

the middle of filming of a motion picture – the user will be able to continue to prepare 

and exploit the derivative work under our recommendation, provided it pays reasonable 

compensation and makes reasonable attribution to the author and owner.393

As with the large-scale access user, the recommendation is designed to encourage 

negotiation and settlement between the resurfacing owner and orphan work user. While 

the subsequent creator would be able to exploit its derivative work, if it wanted to make 

additional derivative works (such as a television series based on the original motion 

picture it created), it would need permission of the orphan work owner, who is now 

clearly known and locatable. Ideally the owner and user would negotiate a mutually 

satisfactory resolution of issues like these. 

 393 See Recommended Statutory Language, section 514(b)(2)(A). 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

c. Enthusiast User 

As described, the enthusiast user is typically an individual who has expertise or 

interest in a particular subject and wishes to make use of works, such as old journals, 

books or articles, that relate to his area of interest. This use often involves making the 

work available on the Internet for other enthusiasts or anyone in the public who is 

interested in the subject matter. In most cases the use is not being made for commercial 

purposes, but mostly for scholarly or hobbyist purposes. 

This user will find himself in a similar position as the large-scale access user. He 

must perform a reasonably diligent search for the owner, which will likely be part of the 

user’s ongoing efforts to develop expertise in the field. In fact, in some cases the 

enthusiast user might be in the best position to find the owner given the breadth of 

knowledge and interest he has for the subject. 

Once he has performed the search and been unable to find the owner, he can make 

use of the work by, for example, posting it on the Internet for other enthusiasts. If the 

owner surfaces and notifies the user of his copyright, the user can take the material down 

to ensure that he has no monetary liability for the use (provided he has not made 

commercial use of the work). As with the other uses, though, the owner may wish to 

allow continued use of the work, given that many people who are interested in the subject 

would likely visit the enthusiast’s site or otherwise become known to the owner. 

d. Private User 

The most common situation involving personal use described to us in the 

comments involved the reproduction of old family photographs from studios and 

photographers who are long gone. In such a case the dissemination of the work will 

likely be very limited, generally among family members and relatives. In such a case the 

user should make an effort to find the original photographer and copyright owner. If that 

photographer cannot be found through such search, then the user could commence 

reproduction of the work. 

It is highly unlikely that the copyright owner will surface in cases like these for a 

few reasons. First, discovery of the infringement is not likely, given that the infringing 

copies will be disseminated – if at all – among a limited group and not generally made 

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REPORT ON ORPHAN WORKS UNITED STATES COPYRIGHT OFFICE

available to the public.394 Second, the amount of damages involved in these cases is 

likely very small, probably in the range of the cost of reprints, so that litigation costs 

would far outweigh prospective recovery, even if full remedies were available. 

Nevertheless, if the user stopped his infringing activities upon notice of infringement, he 

would be insulated from monetary liability by the non-commercial provision in the 

recommendation.395

The more interesting question arises when the personal user enlists the aid of a 

commercial photofinisher to help in making the copies of the orphan photograph. By 

making reproductions of the photographs, the photofinisher is committing infringement, 

and would benefit from the limitations of remedies only if it can demonstrate that it met 

the requirements of reasonable search and attribution for the work. In most cases it 

would be the user, not the photofinisher, who performs any search for the owner. 

Whether it is reasonable for the photofinisher to rely on the search of its customer 

depends on the circumstances – it might be possible for the company to institute 

procedures to record the efforts made by the user as evidence of the reasonable search. It 

would also be required to include attribution of the original photographer on the prints 

made for the customer. 

In short, our recommendation might very well apply to the photofinisher who 

makes copies of the orphan family photograph, but it may not provide the most efficient 

solution to this problem. A more efficient solution involves discussions between the 

photofinishers and the photography associations to develop more appropriate procedures 

for the photofinishers to undertake to find the original copyright owner. The photography 

associations have indicated to us that they are willing to develop such procedures, 

perhaps by providing photofinishers with an online database that could be searched by

employees to locate missing photographers. We hope that Congressional attention to this 

issue will prompt a solution that allows the public to obtain copies of orphan photographs 

in an efficient manner that protects the interests of active and locatable photographers. 

 394 If the user made the work available on a public website it might increase the likelihood of

discovery of infringement, but not necessarily by much. 

395 See Recommended Statutory Language, section 514(b)(1)(A). This provision would also apply

other types of personal private uses described to us, like those users who want to modify computer 

programs for their private use. For similar reasons as photographs, it is unlikely that the copyright owner, 

if he exists, would discover truly private use of a work. 

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UNITED STATES COPYRIGHT OFFICE REPORT ON ORPHAN WORKS

C. Recommended Statutory Language

SECTION 514: LIMITATIONS ON REMEDIES: ORPHAN WORKS

(a) Notwithstanding sections 502 through 505, where the infringer: 

(1) prior to the commencement of the infringement, performed a good faith, reasonably 

diligent search to locate the owner of the infringed copyright and the infringer did not locate 

that owner, and 

(2) throughout the course of the infringement, provided attribution to the author and 

copyright owner of the work, if possible and as appropriate under the circumstances, 

the remedies for the infringement shall be limited as set forth in subsection (b). 

(b) LIMITATIONS ON REMEDIES

(1) MONETARY RELIEF

 (A) no award for monetary damages (including actual damages, statutory damages, 

costs or attorney’s fees) shall be made other than an order requiring the infringer to pay 

reasonable compensation for the use of the infringed work; provided, however, that 

where the infringement is performed without any purpose of direct or indirect 

commercial advantage, such as through the sale of copies or phonorecords of the 

infringed work, and the infringer ceases the infringement expeditiously after receiving 

notice of the claim for infringement, no award of monetary relief shall be made. 

(2) INJUNCTIVE RELIEF

(A) in the case where the infringer has prepared or commenced preparation of a 

derivative work that recasts, transforms or adapts the infringed work with a significant 

amount of the infringer’s expression, any injunctive or equitable relief granted by the 

court shall not restrain the infringer’s continued preparation and use of the derivative 

work, provided that the infringer makes payment of reasonable compensation to the 

copyright owner for such preparation and ongoing use and provides attribution to the 

author and copyright owner in a manner determined by the court as reasonable under the 

circumstances; and 

(B) in all other cases, the court may impose injunctive relief to prevent or restrain the 

infringement in its entirety, but the relief shall to the extent practicable account for any 

harm that the relief would cause the infringer due to the infringer’s reliance on this 

section in making the infringing use. 

(c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement, 

including fair use, under this title. 

(d) This section shall not apply to any infringement occurring after the date that is ten years from 

date of enactment of this Act. 

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APPENDIX A 

FEDERAL REGISTER NOTICES ON ORPHAN WORKS

Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 3739

of the General Counsel/CARP, U.S. 

Copyright Office, James Madison 

Memorial Building, Room LM–401, 101 

Independence Avenue, SE, Washington, 

DC 20559–6000 between 8:30 a.m. and 

5p.m. If delivered by a commercial 

carrier, an original and five copies of a 

comment must be delivered to the 

Congressional Courier Acceptance Site 

located at 2nd and D Street, NE, 

between 8:30 a.m. and 4 p.m. The 

envelope should be addressed as 

follows: Office of the General Counsel/

CARP, Room 403, James Madison 

Memorial Building, 101 Independence 

Avenue, SE, Washington, DC. If sent by 

mail (including overnight delivery using 

U.S. Postal Service Express Mail), an 

original and five copies of a comment 

should be addressed to: Copyright 

Arbitration Royalty Panel (CARP), P.O. 

Box 70977, Southwest Station, 

Washington, DC 20024–0977. 

Comments may not be delivered by 

means of overnight delivery services 

such as Federal Express, United Parcel 

Service, etc., due to delays in processing 

receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or 

Tanya M. Sandros, Associate General 

Counsel, Copyright Arbitration Royalty 

Panel (CARP), P.O. Box 70977, 

Southwest Station, Washington, DC 

20024–0977. Telephone: (202) 707–

8380. Telefax: (202) 252–3423.

SUPPLEMENTARY INFORMATION: Section 

111 of title 17 of the United States Code 

creates a statutory license for cable 

systems that retransmit to their 

subscribers over–the–air broadcast 

signals. Royalty fees for this license are 

calculated as percentages of a cable 

system’s gross receipts received from 

subscribers for receipt of broadcast 

signals. A cable system’s individual 

gross receipts determine the applicable 

percentages. These percentages, and the 

gross receipts limitations, are published 

in 37 CFR part 256 and are subject to 

adjustment at five–year intervals. 17 

U.S.C. 801(b)(2)(A) & (D) (2000). This is 

a window year for such an adjustment.

On January 10, 2005, the Copyright 

Office received a joint petition from 

representatives of copyright owners of 

sports programming (‘‘Joint Sports 

Claimants’’) and motion pictures and 

syndicated television series (‘‘Program 

Suppliers’’) requesting commencement 

of a cable rate adjustment proceeding. 

See http://www.copyright.gov/carp/

cable–rate–petition.pdf. As part of the 

joint petition, Joint Sports Claimants 

and Program Suppliers request that their 

‘‘petition and any resulting proceeding 

be handled pursuant to existing CARP 

procedures, rather than under the new 

provisions established by the Copyright 

Royalty and Distribution Reform Act of 

2004 (‘CRDRA’).’’ Joint petition at 2. 

They assert that their request is 

consistent with the CRDRA, Pub. L. 

108–419, which does not take effect 

until May 30, 2005, and note that the 

CRDRA does not contain a provision for 

a termination of proceedings that 

addresses petitions filed between 

November 30, 2004, and May 30, 2005. 

Furthermore, Joint Sports Claimants and 

Program Suppliers submit that a CARP 

proceeding will resolve the 2005 cable 

rate adjustment more expeditiously than 

the CRJs which, in their view, could 

take more than two years to finalize. Id.

at 3.

The Copyright Office seeks public 

comment as to whether it is appropriate 

and/or required that the 2005 cable rate 

adjustment be resolved through the 

CARP process set forward in chapter 8 

of the Copyright Act prior to passage of 

the CRDRA, or whether the joint 

petition filed by the Joint Sports 

Claimants and the Program Suppliers 

should be terminated and transferred to 

the CRJs.

Dated: January 21, 2005

Marybeth Peters,

Register of Copyrights.

[FR Doc. 05–1436 Filed 1–25–05; 8:45 am]

BILLING CODE 1410–33–S

LIBRARY OF CONGRESS

Copyright Office 

Orphan Works

AGENCY: Copyright Office, Library of 

Congress.

ACTION: Notice of inquiry.

SUMMARY: The Copyright Office seeks to 

examine the issues raised by ‘‘orphan 

works,’’ i.e., copyrighted works whose 

owners are difficult or even impossible 

to locate. Concerns have been raised 

that the uncertainty surrounding 

ownership of such works might 

needlessly discourage subsequent 

creators and users from incorporating 

such works in new creative efforts or 

making such works available to the 

public. This notice requests written 

comments from all interested parties. 

Specifically, the Office is seeking 

comments on whether there are 

compelling concerns raised by orphan 

works that merit a legislative, regulatory 

or other solution, and what type of 

solution could effectively address these 

concerns without conflicting with the 

legitimate interests of authors and right 

holders.

DATES: Written comments must be 

received in the Copyright Office on or 

before 5 p.m. EST on March 25, 2005. 

Interested parties may submit written 

reply comments in direct response to 

the written comments on or before 5 

p.m. on May 9, 2005.

ADDRESSES: All submissions should be 

addressed to Jule L. Sigall, Associate 

Register for Policy & International 

Affairs. Comments may be sent by 

regular mail or delivered by hand, or 

sent by electronic mail to the e-mail 

address ‘‘orphanworks@loc.gov’’ (see 

file formats and information 

requirements under supplemental 

information below). Those sent by 

regular mail should be addressed to the 

U.S. Copyright Office, Copyright GC/

I&R, P.O. Box 70400, Southwest Station, 

Washington, DC 20024. Submissions 

delivered by hand should be brought to 

the Public Information Office, U.S. 

Copyright Office, James Madison 

Memorial Building, Room LM–401, 101 

Independence Avenue, SE., 

Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

Mary Rasenberger, Policy Advisor for 

Special Programs, Copyright GC/I&R, 

PO Box 70400, Southwest Station, 

Washington, DC 20024–0400. 

Telephone (202) 707–8350; telefax (202) 

707–8366.

SUPPLEMENTARY INFORMATION: 

File Formats and Required Information 

1. If by electronic mail: Send to 

‘‘orphanworks@loc.gov’’ a message 

containing the name of the person 

making the submission, his or her title 

and organization (if the submission is 

on behalf of an organization), mailing 

address, telephone number, telefax 

number (if any) and e-mail address. The 

message should also identify the 

document clearly as either a comment 

or reply comment. The document itself 

must be sent as a MIME attachment, and 

must be in a single file in either: (1) 

Adobe Portable Document File (PDF) 

format (preferred); (2) Microsoft Word 

2000 or earlier; (3) WordPerfect 8.0 or 

earlier; (4) Rich Text File (RTF) format; 

or (5) ASCII text file format. 

2. If by regular mail or hand delivery: 

Send, to the appropriate address listed 

above, two copies of the comment, each 

on a 3.5-inch write-protected diskette, 

labeled with the name of the person 

making the submission and, if 

applicable, his or her title and 

organization. Either the document itself 

or a cover letter must also include the 

name of the person making the 

submission, his or her title and 

organization (if the submission is on 

behalf of an organization), mailing 

3740 Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 

1The Berne Convention article 5(2) ‘‘no 

formalities’’ requirement has been incorporated by 

reference into both the Agreement on Trade-Related 

Aspects of Intellectual Property Rights (‘‘TRIPS’’), 

and the WIPO Copyright Treaty (‘‘WCT’’). See 

Agreement on Trade-Related Aspects of Intellectual 

Property Rights, Apr. 15, 1994, art. 9.1, Marrakesh 

Agreement Establishing the World Trade 

Organization, Annex 1C, Legal Instruments—

Results of the Uruguay Round vol. 31, 33 I.L.M. 81, 

87 (1994); WIPO Copyright Treaty, Apr. 12, 1997, 

art. 3, S. Treaty Doc. No. 105–17 (1997), 36 I.L.M. 

65, 69 (1997). The WIPO Performances and 

Phonograms Treaty (‘‘WPPT’’) contains an express 

‘‘no formalities’’ provision without reference to the 

Berne Convention. See WIPO Performances and 

Phonograms Treaty, Apr. 12, 1997, art. 20, S. Treaty 

Doc. No. 105–17 (1997), 36 I.L.M. 76, 80 (1997).

2H.R. Rep. No. 94–1476, at 134 (1976).

3Letter from Larry Urbanski, Chairman, American 

Film Heritage Association, to Senator Strom 

Thurmond Opposing S. 505 (Mar. 31, 1997), 

available at http://homepages.law.asu.edu/

∼dkarjala/Opposing CopyrightExtension/letters/

AFH.html (stating that as much as 75% of motion 

pictures from the 1920s are no longer clearly owned 

by anyone, and film preservationists as such cannot 

obtain the necessary permissions to preserve them).

4See Register of Copyrights, Report on Copyright 

and Digital Distance Education 41–43 (1999).

address, telephone number, telefax 

number (if any) and e-mail address (if 

any). The document itself must be in a 

single file in either (1) Adobe Portable 

Document File (PDF) format (preferred); 

(2) Microsoft Word 2000 or earlier; (3) 

WordPerfect Version 8.0 or earlier; (4) 

Rich Text File (RTF) format; or (5) ASCII 

text file format. 

3. If by print only: Anyone who is 

unable to submit a comment in 

electronic form should submit an 

original and two paper copies by hand 

or by mail to the appropriate address 

listed above. It may not be feasible for 

the Copyright Office to place these 

comments on the Office’s Web site. 

Background 

The Copyright Act of 1976 made it 

substantially easier for an author to 

obtain and maintain copyright in his or 

her creative works. Today, copyright 

subsists the moment an original work of 

authorship is fixed in a tangible form—

it need not be registered with the 

Copyright Office or published with 

notice to obtain protection. While 

registration of claims to copyright with 

the Copyright Office is encouraged and 

provides important benefits to copyright 

holders, it is not required as a condition 

to copyright protection. Under the 1909 

Act, renewal registration was required 

to maintain protection beyond an initial 

28-year term. Failure to register the 

renewal during the last year of the first 

term resulted in complete loss of 

protection. The 1976 Act removed the 

renewal requirement going forward, but 

kept it for works copyrighted before 

1978. It was not until 1992 that the 

renewal requirement was abolished 

altogether. These changes, as well as 

other changes in the 1976 Act and in the 

Berne Convention Implementation Act 

of 1988, were important steps toward 

harmonizing U.S. copyright law with 

international treaties. Specifically, the 

Berne Convention and other treaties 

dealing with copyright that have 

followed forbid the imposition of 

formalities as a condition to copyright, 

principally on the grounds that failure 

to comply with formalities can serve as 

a trap for the unwary, resulting in the 

inadvertent loss of copyright.1

Concerns have been raised, however, 

as to whether current copyright law 

imposes inappropriate burdens on 

users, including subsequent creators, of 

works for which the copyright owner 

cannot be located (hereinafter referred 

to as ‘‘orphan’’ works). The issue is 

whether orphan works are being 

needlessly removed from public access 

and their dissemination inhibited. If no 

one claims the copyright in a work, it 

appears likely that the public benefit of 

having access to the work would 

outweigh whatever copyright interest 

there might be. Such concerns were 

raised in connection with the adoption 

of the life plus 50 copyright term with 

the 1976 Act and the 20-year term 

extension enacted with the Sonny Bono 

Copyright Term Extension Act of 1998.

The Copyright Office has long shared 

these concerns about orphan works and 

has considered the issue to be worthy of 

further study. On January 5, Senators 

Orrin Hatch and Patrick Leahy of the 

Senate Judiciary Committee asked the 

Register of Copyrights to study this 

issue and to report to the Senate 

Judiciary Committee by the end of the 

year. Also in January, Reps. Lamar 

Smith and Howard Berman, the 

chairman and ranking member of the 

House Judiciary Committee’s 

Subcommittee on Courts, the Internet 

and Intellectual Property, sent letters to 

the Register supporting this effort. The 

Office is gratified that Congress has 

shown an interest in this important 

issue and is pleased to assist Congress 

in its efforts to learn more about the 

problem and to consider appropriate 

solutions. 

Prior to the 1976 Act, the term of 

protection was limited to 28 years if the 

copyright was not renewed. Under this 

system, if the copyright owner was no 

longer interested in exploiting the work, 

or a corporate owner no longer existed, 

or, in the case of individual copyright 

owners, there were no interested heirs 

to claim the copyright, then the work 

entered the public domain. Of course, it 

also meant that some copyrights were 

unintentionally allowed to enter the 

public domain, for instance, where the 

claimant was unaware that renewal had 

to occur within the one year window at 

the end of the first term or that the 

copyright was up for renewal. The 

legislative history to the 1976 Act 

reflects Congress’ recognition of the 

concern raised by some that eliminating 

renewal requirements would take a large 

number of works out of the public 

domain and that for a number of those 

older works it might be difficult or 

impossible to identify the copyright 

owner in order to obtain permissions. 

Congress nevertheless determined that 

the renewal system should be discarded, 

in part, because of the ‘‘inadvertent and 

unjust loss of copyright’’ it in some 

cases caused.2 More recently, in the 

mid-1990s, Congress heard concerns 

that the Copyright Term Extension Act 

would exacerbate problems in film 

preservation by maintaining copyright 

protection for older motion pictures for 

which the copyright owner is difficult to 

identify.3 Also, in our study on Digital 

Distance Education published in 1999, 

the Copyright Office identified several 

‘‘problems with licensing’’ that 

educators asserted in attempting to use 

copyrighted materials in digital formats, 

including that ‘‘it can be timeconsuming, difficult or even impossible 

to locate the copyright owner or 

owners.’’ 4

A situation often described is one 

where a creator seeks to incorporate an 

older work into a new work (e.g., old 

photos, footage or recordings) and is 

willing to seek permission, but is not 

able to identify or locate the copyright 

owner(s) in order to seek permission. 

While in such circumstances the user 

might be reasonably confident that the 

risk of an infringement claim against 

this use is unlikely, under the current 

system the copyright in the work is still 

valid and enforceable, and the risk 

cannot be completely eliminated. 

Moreover, even where the user only 

copies portions of the work in a manner 

that would not likely be deemed 

infringing under the doctrine of fair use, 

it is asserted by some that the fair use 

defense is often too unpredictable as a 

general matter to remove the uncertainty 

in the user’s mind. 

Some have claimed that many 

potential users of orphan works, namely 

individuals and small entities, may not 

have access to legal advice on these 

issues and cannot fully assess risk 

themselves. Moreover, even if they are 

able to determine with some certainty 

that there is little or no risk of losing a 

lawsuit, they may not be able to afford 

any risk of having to bear the cost of 

defending themselves in litigation. 

Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 3741

5See William M. Landes and Richard A. Posner, 

Indefinitely Renewable Copyright 22–41 (John M. 

Olin Law & Economics Working Paper No. 154, 2d 

Series, 2002), available at http://www.law. 

uchicago.edu/Lawecon/WkngPprs_151–175/

154.wml-rap.copyright.new.pdf; see also H.R. Rep. 

No. 94–1476, at 136 (1976) (‘‘A statistical study of 

renewal registrations made by the Copyright Office 

in 1966 supports the generalization that most 

material which is considered to be of continuing or 

potential commercial value is renewed. Of the 

remainder, a certain proportion is of practically no 

value to anyone, but there are a large number of 

unrenewed works that have scholarly value to 

historians, architects and specialists in a variety of 

fields’’).

6 Indeed, one reason why the renewal system was 

replaced in recent copyright enactments was 

because it at times served to impose an excessive 

penalty on the unwary copyright owner. See H.R. 

Rep. No. 94–1476, at 134 (1976) (‘‘One of the worst 

features of the present copyright law [the 1909 

Copyright Act] is the provision for renewal of 

copyright * * * In a number of cases it is the cause 

of inadvertent and unjust loss of copyright’’).

7Copyright Act, R.S.C., ch. C–42, § 77 (1985) 

(Can.).

8Copyright, Designs and Patents Act, 1988, c. 48, 

§ 57 (Eng.); see also Copyright and Related Rights 

Act, No. 28, 2000 § 88 (Ir.); Laws of Hong Kong, 

Chapter 528: Copyright Ordinance, June 27, 1997 

§ 66, available at http://www.justice.gov.hk/

Home.htm.

Given the high costs of litigation and the 

inability of most creators, scholars and 

small publishers to bear those costs, the 

result is that orphan works often are not 

used—even where there is no one who 

would object to the use. 

This uncertainty created by copyright 

in orphan works has the potential to 

harm an important public policy behind 

copyright: To promote the 

dissemination of works by creating 

incentives for their creation and 

dissemination to the public. First, the 

economic incentive to create may be 

undermined by the imposition of 

additional costs on subsequent creators 

wishing to use material from existing 

works. Subsequent creators may be 

dissuaded from creating new works 

incorporating existing works for which 

the owner cannot be found because they 

cannot afford the risk of potential 

liability or even of litigation. Second, 

the public interest may be harmed when 

works cannot be made available to the 

public due to uncertainty over its 

copyright ownership and status, even 

when there is no longer any living 

person or legal entity claiming 

ownership of the copyright or the owner 

no longer has any objection to such use. 

Empirical analysis of data on trends 

in copyright registrations and renewals 

over the last century suggests that a 

large number of works may fall into the 

category of orphan works.5 Based on 

data of registrations of claims to 

copyright and their subsequent renewal 

under the 1909 Act, it appears that, 

overall, well less than half of all 

registered copyrighted works were 

renewed under the old copyright 

system. Because renewal was required 

to maintain protection of a work, this 

data suggests that, at least in many 

cases, there was insufficient interest a 

mere 28 years later to maintain 

copyright protection. The empirical data 

does not indicate why any particular 

works were not renewed, and no doubt, 

a certain portion of those works were 

not renewed due to inadvertence, 

mistake or ignorance on the part of the 

owner.6 With respect to many of these 

works, however, particularly those 

owned by legal entities or other 

sophisticated copyright owners, it can 

be assumed that the work no longer had 

sufficient economic value to the 

copyright claimant to merit renewal. 

Libraries and scholars have argued that 

those works that have so little economic 

value that they fail to merit the small 

expense and effort of renewal may 

nevertheless have scholarly or 

educational value and should not be 

needlessly barred from such use.

Several alternatives for addressing 

these issues have been proposed and at 

least one country, Canada, has adopted 

legislation that specifically addresses 

orphan works. For background 

purposes, the Copyright Office describes 

some examples in this notice. It is 

stressed that the Office does not take a 

position as to the viability or 

desirability of any specific proposals or 

systems at this time, but seeks input as 

to the pros and cons of, and issues 

raised by, each, as well as proposals for 

other solutions and analysis thereof.

An example of a system that enables 

the use, in certain circumstances, of 

orphan works can be found in Canada’s 

copyright law. The copyright law has a 

specific provision permitting anyone 

who seeks permission to make a 

copyright use of a work and cannot 

locate the copyright owner to petition 

the Canadian Copyright Board for a 

license.7 The Copyright Board makes a 

determination as to whether sufficient 

effort has been made to locate the 

owner. If so, the Copyright Board may 

grant a license for the proposed use. It 

will set terms and fees for the proposed 

use of the work in its discretion and will 

hold collected fees in a fund from which 

the copyright owner, if he or she ever 

surfaces and makes a claim, may be 

paid. It should be noted that since the 

enactment of these provisions in 1990, 

the Copyright Board has issued only 125 

such licenses. More information about 

the Canadian approach can be found on 

the Copyright Board Web site at:

http://www.cb-cda.gc.ca/unlocatable/

index-e.html.

The United Kingdom has a provision 

that affects a small subset of orphan 

works, namely those for which it is 

reasonable to assume the copyright has 

already expired. The law provides that 

there is no infringement where the 

copyright owner cannot be found by a 

reasonable inquiry and where the date 

the copyright expired is uncertain but it 

is reasonable to assume that the 

copyright has expired.8

Specific Questions 

Through review of the submissions, 

the Copyright Office intends to 

determine the scope of the problem, 

evaluate appropriate next steps and 

create a record from which specific 

legislative proposals, if appropriate, 

could be considered and developed. To 

that end, this notice of inquiry sets forth 

several sets of questions, organized by 

issue, in an effort to begin gathering 

relevant information. Commenters do 

not need to respond to all questions, but 

are encouraged to respond to those as to 

which they have particular knowledge 

or information. Commenters may also 

frame additional questions or reframe 

any of the questions below. 

1. Nature of the Problems Faced by 

Subsequent Creators and Users 

What are the difficulties faced by 

creators or other users in obtaining 

rights or clearances in pre-existing 

works? What types of creators or users 

are encountering these difficulties and 

for what types of proposed uses? How 

often is identifying and locating the 

copyright owner a problem? What steps 

are usually taken to locate copyright 

owners? Are difficulties often 

encountered even after the copyright 

owner is identified? If so, this is an 

issue that the Copyright Office also 

invites you to address. 

2. Nature of ‘‘Orphan works’’: 

Identification and Designation 

How should an ‘‘orphan work’’ be 

defined? Should ‘‘orphan works’’ be 

identified on a case-by-case basis, 

looking at the circumstances 

surrounding each work that someone 

wishes to use and the attempts made to 

locate the copyright owner? Should a 

more formal system be established? For 

instance, it has been suggested that a 

register or other filing system be 

adopted whereby copyright owners 

could indicate continuing claims of 

ownership to the copyrights in their 

works. 

On the other hand, the establishment 

of a filing system whereby the potential 

user is required to file an intent to use 

3742 Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 

9See also H.R. 2601, 108th Cong. § 3 (2003).

10 17 U.S.C. § 302(e) (2003).

11 § 203.

12 § 108(h). Specifically, this provision provides 

that in the last twenty years of the term of any 

published work, a library or archive, including a 

nonprofit educational institution that functions as 

such, may make any copyright use of the work 

(other than create derivative works) for purposes of 

preservation, scholarship or research, if it has 

determined on the basis of reasonable investigation, 

that (i) the work is not subject to normal 

commercial exploitation, (ii) a copy cannot be 

obtained at a reasonable price, and (iii) the 

copyright owner or its agent has not provided 

notice with the Copyright Office that neither (i) or 

(ii) applies to the work.

13For instance, the U.K. law cited above provides 

a complete defense against liability if the owner 

cannot be found after reasonable inquiry and the 

date of expiration is uncertain but it’s reasonable to 

presume that the copyright has expired. See supra

note 8.

an unlocatable work has also been 

suggested. Would the Copyright Office 

or another organization administer and 

publish such filings? For instance, 

would the Copyright Office publish lists 

of these notices on a regular basis, 

similar to the lists of notices of intent to 

enforce restored copyrights filed with 

the Office? Questions arising from these 

different approaches are set forth in the 

next sections. 

A. Case-by-Case Approach 

The ‘‘ad hoc’’ or ‘‘case-by-case’’

approach, like that adopted in Canada, 

would set forth parameters for the level 

of search that would need to be 

undertaken in order to establish that a 

particular work is ‘‘orphaned.’’ Ensuing 

questions include the nature of those 

parameters. Should the focus be on 

whether the copyright holder is 

locatable? What efforts need be made to 

locate a copyright holder before it can 

be determined that the owner is not 

locatable? Would a search of 

registrations with the Copyright Office 

(or any other registries as described 

below in section B) and an attempt to 

reach the copyright owner identified on 

the work if any (plus any follow up) be 

sufficient? What other resources are 

commonly consulted to locate a 

copyright owner, and what resources 

should be consulted? Do resources like 

inheritance records, archives, 

directories of authors or artists need to 

be searched? Should there be an 

obligation to place an advertisement 

seeking the owner? Should factors such 

as the age of the work (which is 

discussed below), how obscure the work 

is or how long it has been since a 

publication occurred be taken into 

consideration? 

B. Formal Approach

Another approach, like that used in 

the 1909 Act, would require registration 

or some sort of filing by copyright 

owners to maintain their copyrights past 

a certain age and to assist in locating 

copyright owners.9 Would such a new 

registry or registries be created separate 

from the existing system of copyright 

registration (akin to the designated agent 

registry under section 512 of the 

Copyright Act) where copyright owners 

could identify themselves so that users 

could more easily find them? Should 

such a registry(ies) be privately owned 

or administered by a government agency 

like the U.S. Copyright Office? What 

would such a registry look like? What 

kind of information should be required 

from such a filing? Should the 

identification of a person to whom 

permission requests can be sent be 

required? What other information 

should be included? Also, how would 

the registry identify the ‘‘works’’ at 

issue, especially in light of the current 

multimedia age where works can take 

on many forms and spawn multiple 

derivative works? And, even more 

importantly, how could fraud and abuse 

of such a registry be avoided—i.e., what 

is to prevent someone from fraudulently 

claiming works as his own?

Such a registration system could be 

optional as well as mandatory. Where, 

under a mandatory system, copyright 

owners could be required to make a 

filing in order to preserve their rights 

and/or prevent their works from being 

deemed ‘‘orphan,’’ under an optional 

registry, registration might provide 

additional benefits. Alternatively, under 

an optional system failure to register 

could carry certain penalties or limit 

remedies available to the right holder. If 

registration were mandatory, on the 

other hand, would failure to register 

create a rebuttable presumption that the 

work is ‘‘orphaned,’’ or would it 

conclusively be deemed ‘‘orphaned’? 

(Questions as to the effect of a 

designation as an ‘‘orphan work’’ are set 

forth below in section 5). If optional, the 

registry might serve as just one factor in 

determining whether the copyright 

owner was locatable. How helpful 

would such a registration system be in 

determining whether a work was in fact 

‘‘orphaned’? Would the registry then 

qualify as just another place that a 

potential user should look to find the 

owner? If so, how practicable would 

such a system be? What incentives 

would a copyright owner have to use 

such a system? Should the owner be 

permitted to acquire any additional 

benefits from registering, such as 

additional damages or a penalty for 

willful use of a work? Does this tread 

too closely to the copyright registration 

system? What would the effect be on the 

user? For instance, if a user did not 

check the registry, would it prevent the 

user from claiming that the work was 

orphaned? Would there be sufficient 

incentive for copyright owners to 

register in a permissive system? 

3. Nature of ‘‘Orphan Works’’: Age 

Should a certain amount of time have 

elapsed since first publication or 

creation in order for a work to be 

eligible for ‘‘orphaned’’ status? If so, 

how much time? It might be helpful, in 

determining what an appropriate time 

period would be, to note some of the 

different benchmarks for term 

requirements that history and 

international conventions suggest. For 

example, under the 1909 Act, a work 

was to be renewed in the 28th year after 

publication. Current copyright law 

provides a presumption after the shorter 

of 95 years from publication or 120 

years from creation that the work is in 

the public domain unless the Copyright 

Office’s records indicate otherwise (and 

the Copyright Office issues a certified 

report to that effect).10 Current 

copyright law provides another 

benchmark in the right to terminate 

grants of transfers or licenses after 35 

(and up to 40) years after the grant or 

publication date.11 Under existing 

international treaties, the term of 

protection for works measured other 

than by the life plus fifty term is 

generally fifty years from publication. 

The Copyright Term Extension Act of 

1998 extended terms in the U.S. by 20 

years, but at the same time recognized 

that certain uses should still be 

allowable in those last twenty years, 

namely uses by libraries and archives of 

certain works that are neither available 

at a reasonable price nor subject to 

normal commercial exploitation.12

Would the last twenty years of the 

copyright term, or any of the other 

benchmarks or time periods noted 

above, be an appropriate measure for 

eligibility as an ‘‘orphan work’? Should 

it be the same for all categories of works, 

or different depending on the nature of 

the work? What if the term for a 

particular work is unknown or 

uncertain? If the copyright owner is not 

known or cannot be found, there will 

certainly be instances where the date of 

creation or death of the author will be 

unknown. Can it be presumed at a 

certain point that a work has entered 

into the period in which it can be 

recognized as an orphan work?13

4. Nature of ‘‘Orphan Works’’: 

Publication Status

Should the status of ‘‘orphan works’’

only apply to published works, or are 

there reasons for applying it to 

Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / Notices 3743

14See generally Harper & Row, Publishers, Inc. v.

Nation Enters., 471 U.S. 539, 550–555 (1985).

15Pursuant to that proposal, copyright law would 

be amended to limit liability for the use of works 

where the user has been unable to locate the 

copyright holder after making good faith efforts. 

Liability could be limited to a ‘‘reasonable royalty’’

or the like, or could be akin to the limitation of U.S. 

Federal Government liability to ‘‘reasonable and 

entire compensation as damages * * *, including 

minimum statutory damages.’’ 28 U.S.C. § 1498(b) 

(2003). Complex issues raised by that proposal 

include how to determine what constitutes ‘‘good 

faith efforts’’ to locate the copyright owner and how 

to determine and/ or settle what a reasonable 

royalty would be.

unpublished works as well? In Canada, 

for example, the system for unlocatable 

copyright owners only applies to 

published works. What are the reasons 

for applying it to unpublished works? If 

‘‘orphan work’’ status would apply to 

unpublished works, how would such a 

system preserve the important right of 

first publication recognized by the 

Supreme Court in Harper & Row?14

What are the negative consequences of 

applying such a system to unpublished 

works?

5. Effect of a Work Being Designated 

‘‘Orphaned’

However a work is identified and 

designated as ‘‘orphaned,’’ what would 

be the effects of such designation? 

Under systems for a mandatory, formal 

registry of maintained works, like the 

1909 Act, the right to assert one’s 

exclusive rights vis a` vis others could 

similarly be lost, in whole or in part, if 

the work was not contained on the 

registry. Should this loss of rights apply 

only to the particular work at the time 

of use, or only to the particular use or 

user, or would it affect a permanent loss 

of rights as against all uses and users? 

Other possibilities include imposing a 

limitation on remedies for owners 

whose works are ‘‘orphaned’’—without 

affecting the copyright itself. For 

instance, under the Canadian approach, 

the Copyright Board sets the license fees 

and other terms for the use and collects 

the payments on behalf of the copyright 

owner should one ever be identified. 

Under that approach, users could be 

confident that their use of the work 

would not subject them to the full range 

of remedies under the Copyright Act, 

but only an amount akin to a fee for use. 

At the same time, copyright owners 

would not be concerned about the 

inadvertent loss of rights from failure to 

pay the fee or take other requisite 

action. Domestically, the Copyright 

Clearance Initiative of the GlushkoSamuelson Intellectual Property Law 

Clinic of American University’s 

Washington College of Law is currently 

developing a proposal that would limit 

the liability for users of orphan works 

and not result in any loss of copyright 

per se on the part of the copyright 

owner.15 Under that proposal, only a 

recovery of a reasonable royalty would 

be allowed in infringement actions with 

respect to orphan works where good 

faith efforts have been made to locate 

the copyright owner. Are there other 

approaches that might be used? If a 

reasonable royalty approach is used, 

how should it be determined in any 

given case? To settle disputes as to the 

appropriate fee, is traditional Federal 

court litigation the right dispute 

resolution mechanism, or should an 

administrative agency be charged with 

resolving such disputes or should 

another alternative dispute resolution 

mechanism be adopted?

Are there other measures that could 

be applied in cases of orphan works? 

How would these, or any of the others 

described above, affect the incentives 

for authors of such works, particularly 

small copyright owners or individuals 

who might bear a greater burden than 

copyright owners with more resources? 

6. International Implications 

How would the proposed solutions 

comport with existing international 

obligations regarding copyright? For 

example, Article 5(2) of the Berne 

Convention generally prohibits 

formalities as a condition to the 

‘‘enjoyment and exercise’’ of copyright. 

For any proposed solution, it must be 

asked whether it runs afoul of this 

provision. Would a system involving 

limitations on remedies be consistent 

with the enforcement provisions of the 

Agreement on Trade-Related Aspects of 

Intellectual Property (TRIPS) or the 

prohibition against conditioning the 

enjoyment or exercise of copyright on 

compliance with formalities of TRIPS 

and other international agreements to 

which the U.S. is party? Would such 

proposals satisfy the three-step test set 

forth in TRIPS, Art. 13, requiring that all 

limitations and exceptions to the 

exclusive rights be confined to ‘‘certain 

special cases that do not conflict with 

the normal exploitation of the work and 

do not unreasonably prejudice the 

legitimate interests of the right holder’? 

Are there any other international issues 

raised by a proposed solution?

Dated: January 21, 2005. 

Marybeth Peters, 

Register of Copyrights.

[FR Doc. 05–1434 Filed 1–25–05; 8:45 am] 

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whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Employment and Training 

Administration (ETA). 

Type of Review: Extension of a 

currently approved collection. 

Title: Attestation by Employers Using 

Crewmembers for Longshore Activities 

at Locations in the State of Alaska. 

OMB Number: 1205–0352. 

Frequency: On occasion. 

Affected Public: Business or other forprofit. 

Type of Response: Recordkeeping. 

Number of Respondents: 100. 

Annual Responses: 100. 

Average Response Time: 3 hours. 

Total Annual Burden Hours: 300. 

Total Annualized Capital/Startup 

Costs: $0. 

Total Annual Costs (Operating/

Maintaining Systems or Purchasing 

Services): $0. 

Description: The information 

provided on this form by employers 

seeking to use alien crewmembers to 

perform longshore activities in the State 

of Alaska will permit the Department to 

meet Federal responsibilities for 

program administration, management 

and oversight.

Ira L. Mills, 

Departmental Clearance Officer/Team 

Leader.

[FR Doc. 05–13321 Filed 7–6–05; 8:45 am] 

BILLING CODE 4510–30–P

LIBRARY OF CONGRESS

Copyright Office

Orphan Works

AGENCY: Copyright Office, Library of 

Congress

ACTION: Notice of public roundtables.

SUMMARY: The Copyright Office 

announces public roundtable 

discussions regarding ‘‘orphan works,’’

i.e., copyrighted works whose owners 

are difficult or even impossible to 

identify or locate. The Office seeks to 

address whether there are compelling 

concerns that merit a legislative, 

regulatory or other solution, and what 

type of solution could effectively 

address these concerns without 

conflicting with the legitimate interests 

of authors and right holders. The Office 

solicited and received written 

comments on these issues pursuant to a 

Notice of Inquiry issued earlier this 

year. See Notice of Inquiry, 70 FR 3739 

(Jan. 26, 2005). The Office will now 

hold roundtable discussions to further 

address the issues raised and solutions 

proposed in the written comments.

DATES: The public roundtable will first 

be held in Washington, D.C. on 

Tuesday, July 26, 2005, from 9:00 a.m. 

to 5:00 p.m. E.D.T., and on Wednesday, 

July 27, 2005, from 9:00 a.m. to 5:00 

p.m. E.D.T. An additional roundtable 

will be held in Berkeley, California on 

Tuesday, August 2, 2005, from 9:00 a.m. 

to 5:00 p.m. P.D.T. Requests to 

participate in the roundtables must be 

received by the Copyright Office by 5:00 

p.m. E.D.T. on July 15, 2005.

ADDRESSES: The roundtable in 

Washington, D.C. will be held in the 

Russell Senate Office Building, Room 

188, Washington, D.C. 20510, on July 

26, 2005, and in the Rayburn House 

Office Building, Room 2237, 

Washington, D.C., 20515, on July 27, 

2005. The public roundtable in 

Berkeley, California will be held at the 

Boalt Hall School of Law, University of 

California – Berkeley, Berkeley, 

California 94720. Details on the precise 

location in Berkeley, California will be 

provided in advance of the meeting on 

the Copyright Office website, http://

www.copyright.gov.

FOR FURTHER INFORMATION CONTACT:

Oliver Metzger, Attorney–Advisor, 

Office of Policy & International Affairs, 

Email: omet@loc.gov; Telephone (202) 

707–8350; Fax (202) 707–8366.

SUPPLEMENTARY INFORMATION: 

Procedure for Submitting Requests to 

Participate

The roundtable discussions will be 

open to the public. However, persons 

wishing to participate in the discussions 

must submit a written request to the 

Copyright Office. The request to 

participate must include the following 

information: (1) the name of the person 

desiring to participate; (2) the 

organization(s) represented by that 

person, if any; (3) contact information 

(address, telephone, telefax, and e–

mail); and (4) a one–page summary of 

the specific issues the participant (or his 

or her organization) wishes to address.

The one–page summary must also 

identify in which of the four general 

roundtable topic areas the person would 

most like to participate in order of 

preference, along with the 

corresponding date, time and location 

(see below for detail). Space and time 

constraints may require us to limit 

participation in one or more of the topic 

areas, and there is a chance that not all 

requests to participate will be granted. 

Identification of the desired topic areas 

in order of preference will help the 

Office to ensure that participants will be 

heard in the area(s) of interest most 

critical to them. In addition, any person 

requesting participation in the 

roundtable who did not file a written 

initial or reply comment in response to 

the Notice of Inquiry published on 

January 26, 2005, 70 FR 3739 (January 

26, 2005), must provide his or her 

statement of interest in this proceeding 

in his or her one–page summary. The 

Office will notify each participant in 

advance of his or her designated topic 

area(s), and the corresponding time(s) 

and location(s).

Note also for those who wish to attend 

but not participate in the roundtables 

that space is limited. Seats will be 

available on a first–come, first–served 

basis. However, all discussions will be 

transcribed, and transcripts 

subsequently made available on the 

Copyright Office website.

Requests to participate may be 

submitted to the Office by e–mail 

(preferred), by commercial courier, or by 

hand delivery by a private party 

(submission by overnight service or 

regular mail will not be effective) as 

follows:

1. If by e–mail (preferred): Send to 

orphanworks@loc.gov a message 

containing the information required 

above. The one–page summary of issues 

may be included in the text of the 

message, or may be sent as a MIME 

attachment. If sent as a MIME 

attachment, the summary must be in a 

single file in either: (1) Adobe Portable 

Document File (PDF) format; (2) 

Microsoft Word 2000 or earlier; (3) 

WordPerfect 9.0 or earlier; (4) Rich Text 

File (RTF) format; or (5) ASCII text file 

format.

39342 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Notices 

2. If by commercial, non–government 

courier or messenger: Address to Jule L. 

Sigall, Associate Register for Policy & 

International Affairs, U.S. Copyright 

Office, Room LM–403, James Madison 

Memorial Building, 101 Independence 

Avenue, SE, Washington, DC 20559–

6000, and deliver to the Congressional 

Courier Acceptance Site (CCAS), 2nd 

and D Streets, NE, Washington, DC 

between 8:30 a.m. and 4:00 p.m., a cover 

letter with the information required 

above, and include three copies of the 

one–page summary of issues. (Note: the 

Copyright Office will consider the date 

of receipt at CCAS as the date of receipt 

in the Copyright Office.)

3. If by hand delivery by a private 

party: Address to Jule L. Sigall, 

Associate Register for Policy & 

International Affairs, U.S. Copyright 

Office, James Madison Memorial 

Building, Room LM–401, 101 

Independence Avenue, SE, Washington, 

DC 20559–6000, and deliver to Room 

LM–401 of the James Madison Memorial 

Building, a cover letter with the 

information required above, and include 

three copies of the one–page summary 

of issues.

Background

On January 26, 2005, the Copyright 

Office published a Notice of Inquiry in 

the Federal Register, 70 FR 3739 (Jan. 

26, 2005), announcing its study of issues 

surrounding ‘‘orphan works,’’ i.e., 

copyrighted works whose owners are 

difficult or even impossible to identify 

or locate. The study is a response to 

concerns that difficulty in identifying 

and/or locating copyright owners can 

create difficulties in obtaining 

permission for subsequent creators and 

users to use works in socially 

productive ways, such as by 

incorporating these works in new 

creative efforts, or by making them 

available to the public. Specifically the 

Office seeks to address whether the 

problems identified in the comments 

merit a solution, and what type of 

solution could effectively address these 

problems without conflicting with the 

legitimate interests of authors and right 

holders.

The original Notice of Inquiry invited 

the public to submit written comments. 

Initial Comments were first submitted to 

the Office during a 60–day period 

following issuance of the Notice of 

Inquiry. Reply Comments were then 

submitted during an additional 45–day 

period. The Office received 

approximately 850 unique comments 

during these periods, all of which have 

been posted on the Copyright Office 

website (http://www.copyright.gov/

orphan).

The Copyright Office has reviewed 

the Initial and Reply Comments and 

seeks further information and 

discussion on several issues raised by 

the Notice and this study. To help guide 

the discussion, the following 

Provisional Agenda will be followed in 

both the Washington, DC and Berkeley, 

CA roundtables:

Topic 1: Identification of Orphan Works

Washington, DC: Tuesday, July 26, 

morning session

Berkeley, CA: Tuesday, August 2, 

morning session

The Notice of Inquiry invited 

comments on how the term ‘‘orphan 

work’’ should be defined, or how 

orphan works might be designated. It 

suggested two general approaches: (1) 

an ‘‘ad hoc’’ or case–by–case approach, 

setting forth basic parameters of what 

might constitute a sufficient search 

under the circumstances; and (2) a 

formal approach incorporating a registry 

or registries in various forms and with 

various effects. The Notice of Inquiry 

also invited comment on other 

threshold issues, such as whether 

certain works should be categorically 

excluded from designation as ‘‘orphan 

works’’ because of age, publication 

status, etc. While many comments 

addressed these issues in detail, the 

Copyright Office seeks further 

discussion on the following issues 

within this general area of concern:

a. The ‘‘due diligence’’/‘‘reasonable 

efforts’’ search approach and standard.

b. The role of registries of copyright 

ownership information and/or uses of 

purported orphan works.

c. Inclusion or exclusion of 

unpublished works.

d. Other threshold requirements, such 

as age of works, types of works, types 

of users, types of uses.

Topic 2: Consequences of an ‘‘Orphan 

Works’’ Designation

Washington, DC: Tuesday, July 26, 

afternoon session

Berkeley, CA: Tuesday, August 2, 

afternoon session

Assuming that a work is identified or 

designated as an orphan work, a wide 

range of legal consequences may 

potentially result. The Notice of Inquiry 

summarized some of these 

consequences, while others were 

suggested and addressed in the written 

comments. These consequences vary in 

nature and degree, from limitations on 

the remedies available to a reappearing 

owner, to the payment of a mandatory 

fee by the user in a variety of forms, to 

a statutory exemption explicitly 

authorizing various uses, to termination 

of all rights in the work through entry 

into the public domain. The Copyright 

Office seeks further information on the 

following issues within this topic area:

a. The ‘‘limitations on remedies’’

approach.

b. The exemption and public domain 

approaches.

c. Payment of fees or escrow by the 

user.

d. Other conditions/obligations on the 

user (e.g. time limits, notice, 

registration).

e. Reliance (or ‘‘piggybacking’’) on 

previous searches by subsequent users.

Topic 3: Reclaiming Orphan Works

Washington, DC: Wednesday, July 27, 

morning session

Berkeley, CA: Tuesday, August 2, 

afternoon session

Once a work has been designated an 

orphan work, resulting in any of a 

number of potential legal consequences, 

a formerly unidentified or missing 

copyright owner may reappear and 

attempt to assert rights in the work. This 

assertion of rights might occur during 

any number of stages in the process of 

exploiting of the work, and after a user 

may have incurred costs in reliance on 

the continuing unavailability of the 

original owner. The assertion of rights 

may also occur in a variety of forms, 

from informal communication between 

the original owner and user, to formal 

litigation over rights in the work. The 

Copyright Office seeks further 

discussion of the following issues 

within this topic area:

a. The consequences of owner 

reappearance for uses in the process of 

being prepared for exploitation (whether 

derivative uses or other uses in 

preparation), and for ongoing 

exploitations.

b. The burden of proof in litigation, 

on issues such as the reasonableness of 

a user’s search.

c. Statutory damages and attorneys 

fees.

d. Rights in derivative works based on 

an orphan work.

Topic 4: International Issues

Washington, DC: Wednesday, July 27, 

afternoon session

Berkeley, CA: Tuesday, August 2, 

afternoon session

The Notice of Inquiry specifically 

asked how any proposed solution to 

orphan works problems might be 

reconciled with existing international 

obligations regarding copyright. These 

obligations include the prohibition 

against formalities in the Berne 

Convention, as well as limitations on 

the nature of exceptions imposed by the 

TRIPS Agreement. Several comments 

addressed these questions specifically,

Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Notices 39343

1Section 122 of the Copyright Act permits 

satellite carriers to retransmit local over-the-air 

television broadcast stations to their subscribers. 

See 17 U.S.C. 122.

but also raised other concerns when the 

international dimensions of orphan 

works problems are considered. The 

Copyright Office seeks further 

information on the following issues 

within this topic area:

a. Compliance of various alternatives 

with the Berne Convention prohibition 

against formalities.

b. Compliance of various alternatives 

with TRIPS/Berne ‘‘three–step’’ test for 

limitations or exceptions.

c. Exclusion of foreign works from the 

orphan work definition.

d. Gathering information on 

experience in other countries with 

orphan works issues.

The roundtable might also take up 

other issues not encompassed by the 

above agenda if time permits.

Dated: June 30, 2005

Marybeth Peters,

Register of Copyrights.

[FR Doc. 05–13355 Filed 7–6–05; 8:45 am]

BILLING CODE 1410–30–S

LIBRARY OF CONGRESS

Copyright Office

[Docket No. RM 2005–7]

Satellite Home Viewer Extension and 

Reauthorization Act of 2004

AGENCY: Copyright Office, Library of 

Congress.

ACTION: Notice of inquiry.

SUMMARY: The Copyright Office of the 

Library of Congress is requesting 

information for the preparation of the 

first report to the Congress required by 

the Satellite Home Viewer Extension 

and Reauthorization Act of 2004.

DATES: Comments are due no later than 

August 22, 2005. Reply comments are 

due no later than September 12, 2005.

ADDRESSES: If hand delivered by a 

private party, an original and five copies 

of a comment should be brought to 

Room LM–401 of the James Madison 

Memorial Building between 8:30 a.m. 

and 5 p.m. and the envelope should be 

addressed as follows: Office of the 

General Counsel, U.S. Copyright Office, 

James Madison Memorial Building, 

Room LM–401, 101 Independence 

Avenue, SE, Washington, DC 20559–

6000. If delivered by a commercial 

courier, an original and five copies of a 

comment must be delivered to the 

Congressional Courier Acceptance Site 

located at 2nd and D Streets, NE, 

between 8:30 a.m. and 4 p.m. The 

envelope should be addressed as 

follows: Office of the General Counsel, 

Room LM–403, James Madison 

Memorial Building, 101 Independence 

Avenue, SE, Washington, DC. If sent by 

mail (including overnight delivery using 

U.S. Postal Service Express Mail), an 

original and five copies of a comment 

should be addressed to U.S. Copyright 

Office, Copyright GC/I&R, P.O. Box 

70400, Southwest Station, Washington, 

DC 20024. Comments may not be 

delivered by means of overnight 

delivery services such as Federal 

Express, United Parcel Service, etc., due 

to delays in processing receipt of such 

deliveries.

FOR FURTHER INFORMATION CONTACT:

Tanya Sandros, Associate General 

Counsel, Copyright GC/I&R, P.O. Box 

70400, Southwest Station, Washington, 

DC 20024. Telephone: (202) 707–8380. 

Telefax: (202) 707–8366.

SUPPLEMENTARY INFORMATION: On 

December 8, 2004, the President signed 

the Satellite Home Viewer Extension 

and Reauthorization Act of 2004 

(‘‘SHVERA’’), a part of the Consolidated 

Appropriations Act of 2005. Pub. L. No. 

108–447. SHVERA extends for an 

additional five years the statutory 

license for satellite carriers 

retransmitting over–the–air television 

broadcast stations to their subscribers, 

as well as making a number of 

amendments to the existing section 119 

of the Copyright Act. In addition to the 

extension and the amendments, 

SHVERA directs the Copyright Office to 

conduct two studies and report its 

findings to the Committee on the 

Judiciary of the House of 

Representatives and the Committee on 

the Judiciary of the Senate. One study, 

due by June 30, 2008, requires the 

Copyright Office to examine and 

compare the statutory licensing systems 

for the cable and satellite industries 

under sections 111, 119 and 122 of the 

Copyright Act and recommend any 

necessary legislative changes. The other 

study, due by December 31, 2005, 

requires the Office to examine select 

portions of the section 119 license and 

to determine what, if any, impact 

sections 119 and 122 have had on 

copyright owners whose programming 

is retransmitted by satellite carriers. 

That study is the subject of this Notice 

of Inquiry.

The SHVERA Study

Section 110 of SHVERA provides:

No later than December 31, 2005, the Register 

of Copyrights shall report to the 

Committee on the Judiciary of the House 

of Representatives and the Committee on 

the Judiciary of the Senate the Register’s 

findings and recommendations on the 

following:

(1) The extent to which the unserved 

household limitation for network 

stations contained in section 119 of title 

17, United States Code, has operated 

efficiently and effectively and has 

forwarded the goal of title 17, United 

States Code, to protect copyright owners 

of over–the–air television programming, 

including what amendments, if any, are 

necessary to effectively identify the 

application of the limitation to 

individual households to receive 

secondary transmissions of primary 

digital transmissions of network stations.

(2) The extent to which secondary 

transmissions of primary transmissions 

of network stations and superstations 

under section 119 of title 17, United 

States Code, harm copyright owners of 

broadcast programming throughout the 

United States and the effect, if any, of the 

statutory license under section 122 of 

title 17, United States Code, in reducing 

such harm.

Pub. L. No. 108–447, 118 Stat. 3394, 

3408 (2004).

Part One: The Unserved Household 

Limitation

The statutory license set forth in 

section 119 of the Copyright Act enables 

satellite carriers to retransmit distant 

over–the–air television broadcast 

stations to their subscribers.1The license 

has a significant restriction, however, 

with respect to the retransmission of 

network television stations. Satellite 

carriers may only retransmit distant 

network stations to subscribers who 

reside in ‘‘unserved households.’’ An 

‘‘unserved household,’’ with respect to 

a particular television network, is 

defined in the law as:

[A] household that–

(A) cannot receive, through the use of a 

conventional, stationary, outdoor rooftop 

receiving antenna, an over–the–air signal 

of a primary network station affiliated 

with that network of Grade B intensity as 

defined by the Federal Communications 

Commission under section 73.683(a) of 

title 47 of the Code of Federal 

Regulations, as in effect on January 1, 

1999;

(B) is subject to a waiver that meets the 

standards of subsection (a)(14) whether 

or not the waiver was granted before the 

date of the enactment of the Satellite 

Home Viewer Extension and 

Reauthorization Act of 2004;

(C) is a subscriber to whom subsection (e) 

applies;

(D) is a subscriber to whom subsection (a)(12) 

applies; or

(E) is a subscriber to whom the exemption 

under subsection (a)(2)(B)(iii) applies.

17 U.S.C. 119(d)(10).

APPENDIX B 

INDEX OF WRITTEN COMMENTS

Orphan Works Initial Comments

Orphan Works Initial Comments 

 Download Zip file containing initial comments (large file 24 MB). 

Name/Organization File 

Jon Miller 

John Van Dyke 

Mark A. Miller 

John Jensen 

Mark R. Brown 

Mark Dionne 

Br. Michael T. Bube 

Andrew Jones 

Donna L. Beales 

John Michael Williams 

Craig Froehle 

John Reeve 

Donna Daugherty/Christian Recording Studio 

Robert E. Stewart 

Arthur M. Keller 

Joshua J. Bowman 

David Creighton Samuels 

David Grohmann 

David Barrett 

Garry Jaffe 

Steve Rhode 

Peter Moran 

Thomas A. Beckett/Law Offices of Thomas A. Beckett, PLLC 

OW0001-Miller

OW0002-VanDyke

OW0003-MillerMa

OW0004-Jensen

OW0005-Brown

OW0006-Dionne 

OW0007-Bube

OW0008-Jones

OW0009-Beales 

OW0010-Williams 

OW0011-Froehle

OW0012-Reeve

OW0013-Daugherty

OW0014-Stewart

OW0015-Keller

OW0016-Bowman 

OW0017-Samuels 

OW0018-Grohmann 

OW0019-Barrett 

OW0020-Jaffe 

OW0022-Rhode 

OW0023-Moran 

OW0024-Beckett 

U.S. Copyright Office - Orphan Works Initial Comments Page 1 of 28
Alex Krupp 

David H. Bailey 

Ken Giberson 

Joshua Kronengold 

William Spear/Hunterdon Radio Theatre 

Kenn Rabin/Fulcrum Media Services 

Jay Summers/Night Flight Films, Ltd. 

John Lovering/WSCA-FM 

Maureen LaWent 

Thomas G. Field, Jr. 

Fred Jacabowitz 

Karl Miller/Pierian Recording Society 

Luke Stodola 

Rachel Resnick 

Frank F. Ramos 

Sammy Montana 

Michael Goodfellow 

Paul Benjamin 

Charles R. Booth 

Paul T. Jackson/Trescott Research 

John Levy/John Levy Consulting 

Robert M. Goodman/Goodman Associates, Inc. 

Beth Harrington/Beth Harrington Productions 

Pete Ashdown 

Bruce Damer/ DigiBarn Computer Museum 

Doug Leary/Old Time Radio Researchers 

OW0025-Krupp

OW0026-Bailey

OW0027-Giberson 

OW0028-Kronengold 

OW0029-HRT

OW0030-FMS 

OW0031-NFF 

OW0032-WSCA-FM 

OW0033-LaWent

OW0034-Field

OW0035-Jacabowitz 

OW0036-MillerKa

OW0037-Stodola 

OW0038-Resnick

OW0039-Ramos 

OW0040-Montana 

OW0041-Goodfellow 

OW0042-Benjamin 

OW0043-Booth 

OW0044-TrescottResearch

OW0045-Levy 

OW0046-GoodmanAssoc 

OW0047-Harrington 

OW0048-Ashdown 

OW0049-Damer 

OW0050-Leary 

U.S. Copyright Office - Orphan Works Initial Comments Page 2 of 28

http://www.copyright.gov/orphan/comments/index.html
Stephen J. Theodore 

Graham Mainwaring 

Scott Olmstead 

Chris Spurgeon 

Daniel Callahan 

Bernard Duffy 

Samuel Forrest Arnold 

Joseph Lorenzo Hall 

Jim Vadeboncoeur/JVJ Publishing 

Robert Norton 

William Haynes 

Lawrence Rosen/Rosenlaw & Einschlag 

Axel Mulder 

Bil Corry 

Mark Duncan 

Shannon Appelcline 

David Nelson 

Bradley J. Rhodes 

Kenny Pearce 

David D. Lewis 

Dave Ruske 

Bryan Wagstaff 

Mimi Fautley 

Christopher Needham 

Azel Hill Beckner 

Jon Haupt 

OW0051-Theodore 

OW0052-Mainwaring 

OW0053-Olmstead 

OW0054-Spurgeon 

OW0055-Callahan 

OW0056-Duffy 

OW0057-Arnold 

OW0058-Hall 

OW0059-Vadeboncoeur 

OW0060-Norton 

OW0061-Haynes 

OW0062-Rosenlaw 

OW0063-Mulder 

OW0064-Corry 

OW0065-Duncan 

OW0066-Appelcline 

OW0067-NelsonD 

OW0068-Rhodes 

OW0069-Pearce 

OW0070-Lewis

OW0071-Ruske 

OW0072-Wagstaff 

OW0073-Fautley 

OW0074-Needham 

OW0075-Beckner 

OW0076-Haupt 

U.S. Copyright Office - Orphan Works Initial Comments Page 3 of 28

http://www.copyright.gov/orphan/comments/index.html
Casey Muratori/Molly Rocket, Inc. 

Lester Earnest 

Douglas Fields 

Carol Anne Ogdin 

Garrett Socling 

Mark Durkin 

Scott Schram 

Christopher Bowns 

Daniel Rubinow 

Andrew Lawrence 

Zach Lipton 

Mark Fleckenstein 

Carl Polley 

Robert Smith 

Mercedes Lackey 

Shawn Owen 

David Deelstra 

John Haggerty 

Jonathan McKamey 

Nancy Ross 

M. Diane Moss/Puget Sound Folk Harp Society 

Laura Lynn Haslacker 

Craig Lee Chrisco 

Kevin Savetz 

James R. Fruchterman/Bookshare.org 

Timothy Romano 

OW0077-Muratori

OW0078-Earnest 

OW0079-Fields 

OW0080-Ogdin 

OW0081-Socling 

OW0082-Durkin 

OW0083-Schram 

OW0084-Bowns 

OW0085-Rubinow 

OW0086-Lawrence 

OW0087-Lipton 

OW0088-Fleckenstein 

OW0089-Polley 

OW0090-Smith 

OW0091-Lackey 

OW0092-Owen 

OW0093-Deelstra 

OW0094-Haggerty 

OW0095-McKamey 

OW0096-Ross 

OW0097-Moss 

OW0098-Haslacker 

OW0099-Chrisco 

OW0100-Savetz 

OW0101-Fruchterman 

OW0102-Romano 

U.S. Copyright Office - Orphan Works Initial Comments Page 4 of 28

http://www.copyright.gov/orphan/comments/index.html
Beth A. Kolle 

Dee Jay De Jaye 

Svein Ølnes 

Allen Long 

John P. Morris, III 

Penny Arnold 

Ellen Datlow 

Candida L. Grudecki 

Cam Johnson 

Melissa Johnson 

Bob Harbort 

Lori March 

Robert Lopresti 

G. Miki Hayden 

Melissa Bowyer 

Madeline Fox 

Heather Grimsley 

Sherry K. Granberry 

Libby Rook 

Ruthann E. Gray 

G. Miki Hayden 

Brad Schrunk 

Luke Melia 

Deborah Monika Handley 

Jeffrey L. Thomas 

Jason Glazer/GARD Analytics 

OW0103-Kolle 

OW0104-Jaye 

OW0105-Olnes 

OW0106-Long 

OW0107-Morris 

OW0108-Arnold 

OW0109-Datlow 

OW0110-Grudecki 

OW0111-Johnson 

OW0112-JohnsonM 

OW0113-Harbort 

OW0114-March 

OW0115-Lopresti 

OW0116-Hayden 

OW0117-Bowyer 

OW0118-Fox 

OW0119-Grimsley 

OW0120-Granberry 

OW0121-Rook 

OW0122-Gray 

OW0123-Hayden 

OW0124-Schrunk 

OW0125-Melia 

OW0126-Handley 

OW0127-Thomas 

OW0128-Glazer 

U.S. Copyright Office - Orphan Works Initial Comments Page 5 of 28

http://www.copyright.gov/orphan/comments/index.html
George M. Bogatko 

Liz Lureau 

Ruth Berman 

Tony McCollum 

Jennifer Wright 

Cheryl Houser 

Lisa Sneden 

S. G. Sifferman 

Jackson Slade 

Jim Stanley 

Charles Bosley 

Jolene Picard 

Roger Thorm 

Rebecca Avila 

Brian Williamson 

Cherish Wise 

J. E. Schmidt 

Tracy M. McLarty 

Michelle W. Waddill 

Susan Hughes 

Erin Stevenson 

Carrie Kline 

Christine Liu 

Noah Apodaca/Abduction Productions 

Erik Dannevig 

Harold L. Burstyn 

OW0129-Bogatko 

OW0130-Lureau 

OW0131-Berman 

OW0132-McCollum 

OW0133-Wright 

OW0134-Houser 

OW0135-Sneden 

OW0137-Sifferman 

OW0138-Slade 

OW0139-Stanley 

OW0140-Bosley 

OW0141-Picard 

OW0142-Thorm 

OW0143-Avila 

OW0144-Williamson 

OW0145-Wise 

OW0146-Schmidt 

OW0147-McLarty 

OW0148-Waddill 

OW0149-Hughes 

OW0150-Stevenson 

OW0151-Kline 

OW0152-Liu 

OW0153-Apodaca 

OW0154-Dannevig 

OW0155-Burstyn 

U.S. Copyright Office - Orphan Works Initial Comments Page 6 of 28

http://www.copyright.gov/orphan/comments/index.html
Kelly N. Vaccaro 

Douglas W. Jones 

William G. Hartwell 

Robert Hill 

Tobe Liebert 

Suzanne White Junod 

Flora Moon 

Dennis Bathory-Kitsz 

Gayle Coston 

Bonnie Woodman 

Mary Harris 

Paula M. Rieder 

Tobi Carlson 

Stanley R. McDaniel 

John D. Berry 

Roger Firman 

Michael Leinartas 

Tome Poe/Open Studios 

Susan Murphy 

Eli Mapstead 

Sarah Andrews 

John Charles Menapace/Judmar, Inc. 

Antuanette Wheeler 

Jeanette Berard 

Katz Heitmann 

Patricia Sullivan 

OW0156-Vaccaro 

OW0157-JonesD 

OW0158-Hartwell 

OW0159-Hill 

OW0160-Liebert 

OW0161-Junod 

OW0162-Moon 

OW0163-Bathory-Kitsz 

OW0164-Coston 

OW0165-Woodman 

OW0166-Harris 

OW0167-Rieder 

OW0168-Carlson 

OW0169-McDaniel 

OW0170-Berry 

OW0172-Firman 

OW0173-Leinartas 

OW0175-Poe 

OW0176-Murphy 

OW0177-Mapstead 

OW0178-Andrews 

OW0179-Menapace 

OW0180-Wheeler 

OW0181-Berard 

OW0182-Heitmann 

OW0183-Sullivan 

U.S. Copyright Office - Orphan Works Initial Comments Page 7 of 28

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Scott E. Krane 

Morgan Johnston 

Mark Brill 

Carol Prentice 

Ed Mooney 

Nicolette Bromberg 

Cheri Dohnal 

Clancy Ratliff 

Peggy Struwe 

Teri K. Pettit 

Susan Clark 

John Gilmore 

Carllene Marek 

Scott Groppenbecker 

Glenn Randers-Pehrson 

Geraldine Lee Hizer 

Charlene Montgomery 

Paul Filiault 

Larry Slavens 

James A. Perkins 

James Ofsink 

F. Stewart/Presscommune 

Angela Rayfield 

Chris Backe 

Jim Lawrence 

Melinda Baumann 

OW0184-Krane 

OW0185-Johnston 

OW0186-Brill 

OW0187-Prentice 

OW0188-Mooney 

OW0189-Bromberg 

OW0191-Dohnal 

OW0192-Ratliff 

OW0193-Struwe 

OW0195-Pettit 

OW0196-Clark 

OW0197-Gilmore 

OW0198-Marek 

OW0199-Groppenbecker 

OW0200-Randers-Pehrson 

OW0201-Hizer 

OW0202-Montgomery 

OW0203-Filiault 

OW0204-Slavens 

OW0205-Perkins 

OW0206-Ofsink 

OW0207-Stewart 

OW0208-Rayfield 

OW0209-Backe 

OW0210-Lawrence 

OW0211-Baumann 

U.S. Copyright Office - Orphan Works Initial Comments Page 8 of 28

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Geoffrey Brown 

Mike Dalbey 

James Pecora 

James Edward Frazier 

David Ashby 

Robert Schommer 

John B. McGowan 

Stephen Collins 

Stephen Craig Sturgeon 

Miriam Intrator 

Carol S. Verble 

Craig E. DeForest 

Nathan Hill 

Christian Holtje 

Mike Shifflet 

Peggy B. Perazzo 

Corey Miles 

Ward Schumaker 

Ward Schumaker 

Eric Hamilton 

Michael J. Mahon 

Brad Weelborg 

Laura Coyle 

Michael Waddell 

Janet Brennan Croft 

Greg Clerke 

OW0212-Brown 

OW0213-Dalbey 

OW0214-Pecora 

OW0215-Frazier 

OW0216-Ashby 

OW0217-Schommer 

OW0218-McGowan 

OW0219-Collins 

OW0220-Sturgeon 

OW0221-Intrator 

OW0222-Verble 

OW0223-DeForest 

OW0224-Hill 

OW0225-Holtje 

OW0226-Shifflet 

OW0227-Perazzo 

OW0228-Miles 

OW0229-Schumaker 

OW0230-Schumaker 

OW0232-Hamilton 

OW0233-Mahon 

OW0234-Weelborg 

OW0235-Coyle 

OW0236-Waddell 

OW0237-Brennan 

OW0239-Clerke 

U.S. Copyright Office - Orphan Works Initial Comments Page 9 of 28

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Jacob R. Flom 

Dennis Hollingsead 

Tyler Thompson 

Alan Isaac 

Carol Schaefer 

M. H. Barden 

Gio Wiederhold 

Andrew Meit 

Oceana Wilson 

Jill Baker 

Andrew Roughan 

Kathy S. Highbaugh 

Tracey Baker 

Glynis K. Long 

Jeff Ivins 

Martha W. Jackson 

Michael Barr 

Alana Jones 

Elizabeth Leach 

Tamara G. Miller 

Riley Gordinier 

Chesley H. Looney 

Michael Allan Slaughter/VaiVecchio Press 

Elizabeth McKenty 

Mickey Alan Rush 

Joshua 

OW0240-Flom 

OW0241-Hollingsead 

OW0242-Thompson 

OW0243-Isaac 

OW0244-Schaefer 

OW0245-Barden 

OW0246-Wiederhold 

OW0248-Meit 

OW0249-Wilson 

OW0250-Baker 

OW0251-Roughan 

OW0252-Highbaugh 

OW0253-BakerT 

OW0254-Long 

OW0255-Ivins 

OW0256-Jackson 

OW0257-Barr 

OW0258-Jones 

OW0259-Leach 

OW0260-Miller 

OW0261-Gordinier 

OW0262-Looney 

OW0263-Slaughter 

OW0264-McKenty 

OW0265-Rush 

OW0266-Joshua 

U.S. Copyright Office - Orphan Works Initial Comments Page 10 of 28

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Gloria Tavera 

Mel Sims 

E.L. Allen 

Evelyn Mae Sawyer 

Robert E. Van Cleef 

Gary P. Binkley 

Charles James Fisher 

Dominic Lachowicz 

James Campbell/Modular Media 

Ruth Hinkel-Pevzner 

Ben Jones 

Sam Hart 

Ian Clasbey 

Edmund Zavada 

Jeffrey Wingstrom 

James Delaney 

Alister Troup 

Aaron Goos 

Avi Weider 

William Couture 

Josh Castillo 

Frederick Sienkiewicz 

John A. Davies 

James C. Estill 

Ed Holden 

Robert Moore 

OW0267-Tavera 

OW0268-Sims 

OW0269-Allen 

OW0270-Sawyer 

OW0271-Cleef 

OW0272-Binkley 

OW0273-Fisher 

OW0274-Lachowicz 

OW0275-Campbell 

OW0276-Hinkel-Pevzner 

OW0277-Jones 

OW0278-Hart 

OW0279-Clasbey 

OW0280-Zavada 

OW0281-Wingstrom 

OW0282-Delaney 

OW0283-Troup 

OW0284-Goos 

OW0285-Weider 

OW0286-Couture 

OW0287-Castillo 

OW0288-Sienkiewicz 

OW0289-Davies 

OW0290-Estill 

OW0291-Holden 

OW0292-Moore 

U.S. Copyright Office - Orphan Works Initial Comments Page 11 of 28

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Chris Marko 

Robert Penland 

Steven Hauser 

John Dubberley 

Evan Gray 

J. Thomas Stowell 

Gregory Kearney 

Kevin Staggers 

Bruce McIntosh 

David Rorabaugh 

Jonathan Reed 

Pete Hardie 

Ronald Bense 

James Roots 

Justin Kear 

Thomas Paris 

William Schuller 

Will Wood 

Charles B. McGregor 

Cameron Morland 

John DiNardo 

Samuel Saks 

Ned M. Andre 

Timothy F. O’Reilly 

Frank Hardisty 

Henry Melton 

OW0293-Marko 

OW0294-Penland 

OW0295-Hauser 

OW0296-Dubberley 

OW0297-Gray 

OW0298-Stowell 

OW0299-Kearney 

OW0300-Staggers 

OW0301-McIntosh 

OW0302-Rorabaugh 

OW0303-Reed 

OW0304-Hardie 

OW0305-Bense 

OW0306-Roots 

OW0307-Kear 

OW0308-Paris 

OW0309-Schuller 

OW0310-Wood 

OW0311-McGregor 

OW0312-Morland 

OW0313-DiNardo 

OW0314-Saks 

OW0315-Andre 

OW0316-O’Reilly 

OW0317-Hardisty 

OW0318-Melton 

U.S. Copyright Office - Orphan Works Initial Comments Page 12 of 28

http://www.copyright.gov/orphan/comments/index.html
Elliotte Rusty Harold 

Mike Mol 

Ian Michael Smith 

Owen Barton 

Elizabeth Snella 

Daniel Roy 

James McPherson 

Douglas Hurst Quebbeman 

Matt Beito 

Bill Nolde 

Robert Doyle 

Bill Davis 

Adam Grove 

Sri Gupta 

Dan Wheeler 

Bob Johnson 

Conny Meester 

Ben Gervais 

Tim Allman 

Shannon Russell 

Phil Barker 

Daniel Brooks 

Margaret Young 

Henry F. Warner III 

Charles Martin 

Ronald Broberg 

OW0319-Harold 

OW0320-Mol 

OW0321-Smith 

OW0322-Barton 

OW0323-Snella 

OW0324-Roy 

OW0325-McPherson 

OW0326-Quebbeman 

OW0327-Beito 

OW0328-Nolde 

OW0329-Doyle 

OW0330-Davis 

OW0331-Grove 

OW0332-Gupta 

OW0333-Wheeler 

OW0334-Johnson 

OW0335-Meester 

OW0336-Gervais 

OW0337-Allman 

OW0338-Russell 

OW0339-Barker 

OW0340-Brooks 

OW0341-Young 

OW0342-Warner 

OW0343-Martin 

OW0344-Broberg 

U.S. Copyright Office - Orphan Works Initial Comments Page 13 of 28

http://www.copyright.gov/orphan/comments/index.html
Alex Pasternak 

Skip Elsheimer 

William Pechter 

Josh Cooper 

Michael Anderson 

James Helsby 

Ruth Ann Jones 

Chris Connett 

Mark Lacas 

Jay Hamill 

Dan Schaff 

Matthew Larson 

Jim Lacy 

William E Roberts 

Brian Horakh 

David Bass 

Matt Whelan 

Dennison Bertram 

David Liszweski 

Charles Talk 

Matthew Bostrom 

Jeff Rankine 

Rob Hagopian 

Hans Mast 

Michael Briggs 

Greg Artiles 

OW0345-Pasternak 

OW0346-Elsheimer 

OW0347-Pechter 

OW0348-Cooper 

OW0349-Anderson 

OW0350-Helsby 

OW0351-Jones 

OW0352-Connett 

OW0353-Lacas 

OW0354-Hamill 

OW0355-Schaaf 

OW0356-Larson 

OW0357-Lacy 

OW0358-Roberts 

OW0359-Horakh 

OW0360-Bass 

OW0361-Whelan 

OW0362-Bertram 

OW0363-Liszewski 

OW0364-Talk 

OW0365-Bostrom 

OW0366-Rankine 

OW0367-Hagopian 

OW0368-Mast 

OW0369-Briggs 

OW0370-Artiles 

U.S. Copyright Office - Orphan Works Initial Comments Page 14 of 28

http://www.copyright.gov/orphan/comments/index.html
Peter Gerdes 

Greg Hawley 

Ivan Rivera 

Sean Smith 

Reagen Ward 

Darrin Michelson 

Tom Zacharoff 

Sham Bhangal 

Peter Bain 

Darryl Allardice 

Tom Gwozdz 

Christopher E. Meadows 

James Nash 

Arron Kau 

Jeremy Scott Stout 

Aaron McCluskey 

Davide Marney 

Jason Finley 

Paul J. Homlish III 

Robert Gregory 

Nathan Gray 

David McBride 

Bill Nash 

Ray Benjamin 

Tyron Byrd 

Nicole Kistler 

OW0372-Gerdes 

OW0373-Hawley 

OW0374-Rivera 

OW0375-Smith 

OW0376-Ward 

OW0377-Michelson 

OW0378-Zacharoff 

OW0379-Bhangal

OW0380-Bain 

OW0381-Allardice 

OW0382-Gwozdz 

OW0383-Meadows 

OW0384-Nash 

OW0385-Kau 

OW0386-Stout 

OW0387-Cluskey 

OW0388-Marney 

OW0389-Finley 

OW0390-Homlish 

OW0391-Gregory 

OW0392-Gray 

OW0393-McBride 

OW0394-Nash 

OW0395-Benjamin 

OW0396-Byrd 

OW0397-Kistler 

U.S. Copyright Office - Orphan Works Initial Comments Page 15 of 28

http://www.copyright.gov/orphan/comments/index.html
Andrew L. Ayers 

Jonathan Webster 

Mike Curtis 

Gregg Williams 

Ryan Henrie 

John Woznack 

Samuel Morris Katz 

Alexander Perlis 

Peter Karlsson 

David Thomas Crosby 

Gene Heskett 

David Wheeler 

Philip Clark 

Joseph Shraibman 

Adam Lorentson 

Gregory Stephen Strange 

Vincent White 

Gary Lint 

Joshua Minor 

Stephen Soghoian 

Dave Reed 

Charles Quintin 

Andrew T Coffman 

Ross Naheedy 

Henry John Lacaze 

Joshua Shiflet 

OW0398-Ayers 

OW0399-Webster 

OW0400-Curtis 

OW0401-Williams 

OW0402-Henrie 

OW0403-Woznack 

OW0404-Katz 

OW0405-Perlis 

OW0406-Karlsson 

OW0407-Crosby 

OW0408-Heskett 

OW0409-Wheeler 

OW0410-Clark 

OW0411-Shraibman 

OW0412-Lorentson 

OW0413-Strange 

OW0414-White 

OW0415-Lint 

OW0416-Minor 

OW0417-Soghoian 

OW0418-Reed 

OW0419-Quintin 

OW0420-Coffman 

OW0421-Naheedy 

OW0422-Lacaze 

OW0423-Shiflet 

U.S. Copyright Office - Orphan Works Initial Comments Page 16 of 28

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Nick Langdon 

Alex Graham 

James Tyler 

David Santoro 

Karl Reinsch 

Forrest Wagg 

Pace Willisson 

Franz Thiebaut 

Terry Tsa 

David Nathanson 

Sara Beth Walsh 

Matthew M. Copeland 

Herb Vanden Dool 

Eric Rouse 

Anthony Meadow 

Brian Keefe 

Cynthia Dye 

James Joseph Wagner 

Alexander Liberman 

Chris Karr 

Eric Anholt 

Elizabeth Holme 

Barbara Delzell 

Peggy Pittas 

G. Feders 

Joseph Pietro Riolo 

OW0424-Langdon 

OW0425-Graham 

OW0426-Tyler 

OW0427-Santoro 

OW0428-Reinsch 

OW0429-Wagg 

OW0430-Willisson 

OW0431-Thiebaut 

OW0432-Tsa 

OW0433-Nathanson 

OW0434-Walsh 

OW0435-Copeland 

OW0436-Dool 

OW0437-Rouse 

OW0438-Meadow 

OW0439-Keefe 

OW0440-Dye 

OW0441-Wagner 

OW0442-Liberman 

OW0443-Karr 

OW0444-Anholt 

OW0445-Holme 

OW0446-Delzell 

OW0447-Pittas 

OW0448-Feders 

OW0449-Riolo 

U.S. Copyright Office - Orphan Works Initial Comments Page 17 of 28

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Gabby Talmadge 

Sean Kamath 

Ellen Fletcher 

Cindy Solomon 

Dean Shannon 

Jennifer Giles 

Michael Kaiser-Nyman 

Michael Keller/Stanford University Libraries 

Lenora Oftedahl 

Daniel Lott 

L. Peter Deutsch 

Jody Lee Bruchon 

Gregory Mullins 

Peter Adams 

June Goulding 

John Paul Young 

Jackie Urbanovic 

Gretel Parker 

Nadiah Beekun 

Noah Lee Gauthier 

Suzanne Wise 

Christopher Mullin 

Ann St Clair 

Gary E. Strong 

Loreen Leedy 

Edward V. George 

OW0450-Talmadge 

OW0451-Kamath 

OW0452-Fletcher 

OW0453-Solomon 

OW0454-Shannon 

OW0455-Giles 

OW0456-Kaiser-Nyman 

OW0457-StanfordUniversity 

OW0458-Oftedahl 

OW0459-Lott 

OW0460-Deutsch 

OW0461-Bruchon 

OW0462-Mullins 

OW0463-Adams 

OW0464-Goulding 

OW0465-Young 

OW0466-Urbanovic 

OW0467-Parker 

OW0468-Beekun 

OW0469-Gauthier 

OW0470-Wise 

OW0471-Mullin 

OW0472-StClair 

OW0473-Strong 

OW0474-Leedy 

OW0475-George 

U.S. Copyright Office - Orphan Works Initial Comments Page 18 of 28

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Victoria S. Scott 

Leslie C. Mathison 

Matthew Vaughan 

Bradley D Broerman 

Diana J. Baker 

Ivan Winfield Hill 

Jennifer Rosselli 

Linda Undernehr 

Debbie Fraser 

Asahi Okada 

Sharyn Sowell 

Sally Vitsky 

John R. Matthews 

Campbell Laird 

Matthew Allison 

Judy Johnson 

Sharon Fernleaf 

Tsandi Crew 

Donald Walker 

Moira Munro 

Barbara S. King 

Jimmy Dorantes 

Norman Klenman 

James Rettig 

Carl Clingman 

Dana L. Roth 

OW0476-Scott 

OW0477-Mathison 

OW0478-Vaughan 

OW0479-Broerman 

OW0480-Baker 

OW0481-Hill 

OW0482-Rosselli 

OW0483-Undernehr 

OW0484-Fraser 

OW0485-Okada 

OW0486-Sowell 

OW0487-Vitsky 

OW0488-Matthews 

OW0489-Laird 

OW0490-Allison 

OW0491-Johnson 

OW0492-Fernleaf 

OW0493-Crew 

OW0494-Walker 

OW0495-Munro 

OW0496-King 

OW0497-Dorantes 

OW0498-Klenman

OW0499-Rettig 

OW0500-Clingman

OW0501-Roth 

U.S. Copyright Office - Orphan Works Initial Comments Page 19 of 28

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Martha Witte 

Mike Day 

Gene Somers 

Ralph Daugherty 

Todd Kuhns 

Nathan Kennedy 

Kevin Williams 

Roger Wolff 

Kurt Schwehr 

William Thomas 

Ben Feuer 

Su Friedrich 

Emily Holland 

Carol Fleishauer/MIT Libraries 

Paul Spehr 

Justin Kerk 

Ken Rinkel* 

Paul Goldstein and Jane Ginsburg 

Larry Urbanski/American Film Heritage Association 

Jennifer Young 

Renee Montgomery 

Brian Schack 

Kenneth Wear 

Leandra Vicci 

Karen Anne Kolling 

Amy Spitzley 

OW0502-Witte 

OW0503-Day 

OW0504-Somers 

OW0505-Daugherty 

OW0506-Kuhns 

OW0507-Kennedy 

OW0508-Williams 

OW0509-Wolff 

OW0510-Schwehr 

OW0511-Thomas 

OW0512-Feuer 

OW0513-Friedrich 

OW0514-Holland 

OW0515-MIT-Libraries 

OW0516-Spehr 

OW0517-Kerk 

OW0518-Rinkel 

OW0519-Goldstein-Ginsburg 

OW0520-AFHA

OW0521-Young 

OW0522-Montgomery 

OW0523-Schack 

OW0524-Wear 

OW0525-Vicci 

OW0527-Kolling

OW0528-Spitzley

U.S. Copyright Office - Orphan Works Initial Comments Page 20 of 28

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Michael Stickel 

Dr. Karl-Friedrich Lenz 

Kevin Kelly 

Jonathan Burton 

John Witek 

Michael Payton 

Voza Rivers 

Denise Covey/Carnegie Mellon University Libraries 

Diana Ponce 

Anita Grien* 

Eric Hollander 

Annette Melville/National Film Preservation Foundation 

Jacqui Morgan* 

Gail B. Fedak 

Daniel Geiger 

Michael Seadle/Michigan State University 

Brooke Young 

John P. Schmelzer et al./Graphics Artists Guild 

Constance K. Lundberg/Brigham Young University-J. Reuben Clark 

Law School 

Michael J Christensen 

Larry Yudelson 

Michael Rew 

Colin Omara 

Richard Bower 

Rosemary A. Chase 

Dennis Buck 

OW0529-Stickel 

OW0531-Lenz 

OW0532-Kelly 

OW0533-Burton 

OW0534-Witek 

OW0535-Payton 

OW0536-Rivers 

OW0537-CarnegieMellon

OW0538-Ponce 

OW0539-Grien 

OW0540-Hollander 

OW0541-NFPF

OW0542-Morgan 

OW0543-Fedak 

OW0544-Geiger 

OW0545-MSU 

OW0546-Young 

OW0547-GAG 

OW0548-BYU

OW0549-Christensen 

OW0550-Yudelson 

OW0551-Rew 

OW0552-Omara 

OW0553-Bower 

OW0554-Chase 

OW0555-Buck 

U.S. Copyright Office - Orphan Works Initial Comments Page 21 of 28

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David McMacken* 

Martin Hugg 

Robert Tanenbaum* 

Manuel Morales* 

David Lord* 

Mark Rue* 

Peter Sis* 

Angela Grisales* 

Tim Lussier 

William A. Gosling/University of Michigan, University Library 

Katie Atkinson 

Madelyn F. Wessel 

Kristie Hubler 

Sarah Thomas/Cornell University Library 

Jesse Thomas 

Edward Richards 

Sam Li 

Deborah L. Miller 

Meredith Woods 

Paul Herman 

Brian E.C. Schottlaender/University of California San Diego 

Libraries 

Zelda K. Workman 

Robin Brickman 

Tim Brooks 

James Kilfiger 

Jahrain Jackson 

OW0556-McMacken 

OW0557-Hugg 

OW0558-Tanenbaum 

OW0559-Morales 

OW0560-Lord 

OW0561-Rue 

OW0562-Sis 

OW0563-Grisales 

OW0564-Lussier 

OW0565-UofMI 

OW0566-Atkinson 

OW0567-Wessel 

OW0568-Hubler 

OW0569-Thomas

OW0570-ThomasJ 

OW0571-Richards 

OW0572-Li 

OW0573-Miller 

OW0574-Woods 

OW0575-Herman 

OW0576-UCSD 

OW0577-Workman 

OW0578-Brickman 

OW0579-Brooks 

OW0580-Kilfiger 

OW0581-Jackson 

U.S. Copyright Office - Orphan Works Initial Comments Page 22 of 28

http://www.copyright.gov/orphan/comments/index.html
Chryssy Tintner 

Joseph Getchel 

Jessica Jones Irons/National Humanities Alliance 

Byron F. Stone 

John Ganly 

Nicolas Sincaglia and Joy O’Shell 

Heidi Mehltretter 

Marc Noel 

Sarah Wohlford 

Barbara Torode/Torode Design Assoc. 

John L. Safko 

Megan Prelinger/Prelinger Library 

Kathe Albrecht/Visual Resources Association 

Peter Jaszi/Glushko-Samuelson Intellectual Property Law Clinic 

James Boyle/Duke Center for the Study of the Public Domain 

James Boyle/Duke Center for the Study of the Public Domain 

Lana Ordian/BHCC Library 

Deborah Jakubs/Duke University Libraries 

Freya Anderson 

Pedro Alcocer 

Eric Ristau 

Dr. Susan Pickett 

Ada Norris 

Allan Adler et al./Association of American Publishers, Association 

of American University Presses, and Software & Information 

Industry Association 

Susan K. Nutter/NCSU Libraries 

Andrew Burt/Science Fiction Fantasy Writers of America 

OW0582-Tintner 

OW0583-Getchel 

OW0584-NHA 

OW0585-Stone 

OW0586-Ganly 

OW0587-Sincaglia

OW0588-Mehltretter 

OW0589-Noel 

OW0590-Wohlford

OWO591-Torode

OW0592-Safko 

OW0593-PrelingerLibrary 

OW0594-Albrecht 

OW0595-Glushko-Samuelson

OW0596-CPD

OW0597-CPD2 

OW0598-Ordian 

OW0599-Duke

OW0600-Anderson 

OW0601-Alcocer 

OW0602-Ristau 

OW0603-Pickett 

OW0604-Norris 

OW0605-AAP-AAUP-SIIA

 

OW0606-NCSULibraries 

U.S. Copyright Office - Orphan Works Initial Comments Page 23 of 28

http://www.copyright.gov/orphan/comments/index.html
Karl Berry 

Peter Kay 

Maureen Whalen et al./The J. Paul Getty Trust, The Metropolitan 

Museum of Art, and The Solomon R. Guggenheim Foundation 

Joseph G. Walsh 

Michael Rolenz 

Susan Kornfield and Jack Bernard 

John T. Mitchell 

Robert L. Greenberg 

Anatoly Volynets 

Eric Hunt 

Huy Nguyen 

Susan Bell 

Randall C. Jimerson/Society of American Archivists 

Jay D. Roth/Directors Guild of America 

Lindsay Heller 

Tom Rankin 

John McLean/Writers Guild of America 

Winston Tabb/Johns Hopkins University, The Sheridan Libraries 

Stephanie Douglas 

Kimala Price 

Sam Mosenkis/ASCAP 

Mike Godwin/Public Knowledge 

Michael Hughes/Library of Congress 

Jack Ko 

Karen Glynn 

Jacob Chachkin 

OW0607-SFFWA 

OW0608-Berry 

OW0609-Kay 

OW0610-ArtMuseums

OW0611-Walsh 

OW0612-Rolenz 

OW0613-Kornfield 

OW0614-Mitchell 

OW0615-Greenberg 

OW0616-Volynets 

OW0617-Hunt 

OW0618-Nguyen 

OW0619-Bell 

OW0620-SAA 

OW0621-DGA 

OW0622-Heller 

OW0623-Rankin 

OW0624-WGA 

OW0625-JHU 

OW0626-Douglas 

OW0627-Price 

OW0628-ASCAP 

OW0629-PublicKnowledge 

OW0630-LOC

OW0631-Ko 

OW0632-Glynn 

U.S. Copyright Office - Orphan Works Initial Comments Page 24 of 28

http://www.copyright.gov/orphan/comments/index.html
Robert S. Schwartz et al./Home Recording Rights Coalition and 

Consumers Electronic Association 

Sarah Elliott 

Michael Bowen 

David Pierce 

Timothy L. Kittleson/UCLA Film and Television Archive 

Sidney Verba/Harvard University Library 

Marvin L. Berenson/Broadcast Music Incorporated 

Steven C. Wheatley/American Council of Learned Societies 

Stephen P. Morris/Professional Photographers of America 

Lawrence Lessig et al./Save The Music and Creative Commons 

Fred Goldstein/Los Angeles County Museum of Art 

Maura King 

Steven Metalitz/Motion Picture Association of America 

Jeffrey Cunard/College Art Association 

Christine L. Sundt 

Elizabeth Aldrich/Dance Heritage Coalition 

Tara Lord 

Anne H. Margulies/MITOpenCourseWare 

Roberta J. Morris 

John Vaughn/Association of American Universities 

Donald A.B. Lindberg/National Institutes of Health and National 

Library of Medicine 

Markham C. Erickson/NetCoalition 

Nancy E. Wolff 

Jack Lerner et al./Internet Archive 

Miriam Nisbet/Library Copyright Alliance 

Elizabeth Townsend 

OW0633-Chachkin 

OW0634-HRRC-CEA 

OW0635-Elliott 

OW0636-Bowen 

OW0637-Pierce 

OW0638-UCLAfilmandtelevision 

OW0639-Verba 

OW0640-BMI 

OW0641-ACLS 

OW0642-PPA 

OW0643-STM-CreativeCommons 

OW0644-LACMA 

OW0645-King 

OW0646-MPAA 

OW0647-CAA 

OW0648-Sundt 

OW0649-DHC 

OW0650-Lord 

OW0651-MITOpenCourseWare 

OW0652-Morris 

OW0653-AAU

OW0654-NIH-NLM 

OW0655-NetCoalition 

OW0656-Wolff 

OW0657-InternetArchive 

OW0658-LCA 

U.S. Copyright Office - Orphan Works Initial Comments Page 25 of 28

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Brad Holland and Cynthia Turner 

Brad Holland and Cynthia Turner/Illustrators’ Partnership 

John Epstein 

Jennifer Urban et al./Various Independent Film Interests 

Paul Geller 

Jeanne Brown/Art Libraries Society of North America 

June Besek/Kernochan Center for Law, Media and the Arts 

Brian Burns/Consortium of College & University Media Centers 

Victor Perlman/American Society of Media Photographers 

Walter McDonough et al./Various Recording Artists' Interests 

Nathan Peters 

Jennifer Carter 

Matthew Slater 

Gavin Baker/FreeCulture.org 

John Mark Ockerbloom 

Dan Streible/Orphan Film Symposium 

Robert Townsend/American Historical Association 

Darcie Tilly 

Bethany Ace 

Timothy Phillips 

Gretchen Wagner/JSTOR, ARTstor Inc, and Ithaka Harbors Inc. 

David Drummond/Google 

Alan Griffy 

Sarah Hinchliff 

Edward Summer/Summerfilm Productions 

Stephen Stine 

OW0659-Townsend 

OW0660-Holland-Turner 

OW0661- IllustratorsPartnership 

OW0662-Epstein 

OW0663-IndependentFilm 

OW0664-Geller 

OW0665-ARLIS-NA 

OW0666-Kernochan-Center 

OW0667-CCUMC 

OW0668-ASMP 

OW0669-FMC-AFTRA-AFM 

OW0670-Peters 

OW0671-Carter 

OW0672-Slater 

OW0673-FreeCulture 

OW0674-Ockerbloom 

OW0675-OFS 

OW0676-AHA 

OW0677-Tilly 

OW0678-Ace 

OW0679-Phillips 

OW0680-JSTOR 

OW0681-Google 

OW0682-Griffy 

OW0683-Hinchliff 

OW0684-Summer 

U.S. Copyright Office - Orphan Works Initial Comments Page 26 of 28

http://www.copyright.gov/orphan/comments/index.html
Michael Donaldson/International Documentary Association 

Steven Marks/Recording Industry Association of America 

Mary Minow 

Kenneth Crews et al. 

Carey Ramos/National Music Publishers’ Association and the Harry 

Fox Agency 

Bruce Funkhouser/Copyright Clearance Center 

Thomas White 

Ryland Hawkins/International Coalition for Copyright Protection 

Molly Skjei 

Thomas Rubin/Microsoft 

Melissa DeGaetano 

Ray Saintonge 

Mark Ellis 

Doris Estelle Long 

Patrick Loughney-George Eastman House 

Brian Merrikin 

Anirvan Chatterjee/Bookfinder.com and 13th Generation Media 

Rachel Dean 

Elizabeth Miller 

Lawrence Solum 

Frank Coleman 

Axel Leijonhufvud 

David Miller 

Dick Lee* 

Steven Fredrick 

Jeff Scott 

OW0685-Stine 

OW0686-IDA 

OW0687-RIAA 

OW0688-Minow 

OW0689-Crews 

OW0690-NMPA-HFA 

OW0691-CCC 

OW0692-White 

OW0693-ICCP 

OW0694-Skjei 

OW0695-Microsoft 

OW0696-DeGaetano 

OW0697-Saintonge 

OW0698-Ellis 

OW0699-Long 

OW0700-Loughney 

OW0701-Merrikin 

OW0702-Bookfinder 

OW0703-Dean 

OW0704-Miller 

OW0706-Solum 

OW0707-Coleman 

OW0708-Leijonhufvud 

OW0709-Miller 

OW0710-Lee 

OW0711-Fredrick 

U.S. Copyright Office - Orphan Works Initial Comments Page 27 of 28

http://www.copyright.gov/orphan/comments/index.html
 *This individual submitted a comment that is identical to OW0660-Holland-Turner. 

 Back to main Orphan Works page.

Home | Contact Us | Legal Notices | Freedom of Information Act (FOIA) | Library of Congress

U.S. Copyright Office 

101 Independence Ave. S.E. 

Washington, D.C. 20559-6000 

(202) 707-3000 

Revised: 22-Dec-2005 

Christopher Sharp* 

Fred Thomas* 

Robert Grossman* 

Jacqueline Freedman* 

Kevin Kelly 

Emmie Hsu* 

David Stein* 

Suzanne Duranceau* 

OW0712-Scott 

OW0713-Sharp 

OW0714-Thomas 

OW0715-Grossman 

OW0716-Freedman 

OW0717-Kelly 

OW0719-Hsu 

OW0720-Stein 

OW0721-Duranceau 

U.S. Copyright Office - Orphan Works Initial Comments Page 28 of 28

http://www.copyright.gov/orphan/comments/index.html
Orphan Works Reply Comments

Orphan Works Reply Comments 

Download Zip file containing reply comments. 

Name/Organization File 

Brian McClatchey 

Erik McDarby 

Diane Graves 

Jessica Tier/The Bridgeman Art Library 

Gary W. Wilson 

Gregory L. Lang 

Sean Neilan 

Gerald Colby/National Writers Union-UAW 1981 

Tim McGuire 

Jonathan Selig 

Meaghan Greyson 

David H. Wells 

Richard Niederberg 

June Burke 

Alison Toon 

Nathanael Nerode 

Jeff Morin 

John Nix 

Simit Patel 

Patrice Hundstad 

Michael L. Cook/Resolution Studios 

Dale B. Canelas/University of Florida Libraries 

Diana Marshall 

OWR0001-McClatchey 

OWR0002-McDarby 

OWR0003-Graves 

OWR0004-BAL 

OWR0005-Wilson 

OWR0006-Lang 

OWR0007-Neilan 

OWR0008-WritersUnion 

OWR0009-McGuire 

OWR0010-Selig 

OWR0011-Greyson 

OWR0012-Wells 

OWR0013-Niederberg 

OWR0014-Burke 

OWR0015-Toon 

OWR0016-Nerode 

OWR0017-Morin 

OWR0018-Nix 

OWR0019-Patel 

OWR0020-Hundstad 

OWR0021-Cook 

OWR0022-UFLibraries 

OWR0023-Marshall 

U.S. Copyright Office - Orphan Works Reply Comments Page 1 of 7
Joe Pierson/Chicago and North Western Historical Society 

Jefferson Moss 

Scott Lawton 

Scott G. Simms 

Vicki Lewis Thompson/Novelists, Inc. 

Jennifer Godwin 

Philippe Delval 

Sherman R. Buck 

James Mikulak 

James Caruso/MediaFirst PR 

Scott Nass 

James A. Crutchfield/Western Writers of America 

Dannell Brock 

Tim Brooks 

Arthur Usherson 

Lynn Bain 

Patti Simpson 

Renee Gardner/Mystery Writers of America 

Stephen Mooser/Society of Children’s Book Writers and 

Illustrators 

Eric Grayson 

Gerry Reiss 

Jane Drake Brody 

Shirley Brungardt 

Stafford J. Keer 

Bob Pickle/Pickle Publishing 

Denise Troll Covey/Carnegie Mellon University Libraries 

OWR0024-Pierson

OWR0025-Moss 

OWR0026-Lawton 

OWR0027-Simms 

OWR0028-NovelistsInc 

OWR0029-Godwin 

OWR0030-Delval 

OWR0031-Buck 

OWR0032-Mikulak 

OWR0033-Caruso 

OWR0034-Nass 

OWR0035-WWA 

OWR0036-Brock 

OWR0037-Brooks 

OWR0038-Usherson 

OWR0039-Bain

OWR0040-Simpson 

OWR0041-MWA 

OWR0042-SCBWI

OWR0043-Grayson 

OWR0044-Reiss 

OWR0045-Brody 

OWR0046-Brundgardt

OWR0047-Keer 

OWR0048-Pickle 

OWR0049-CarnegieMellon 

OWR0050-Brigante 

U.S. Copyright Office - Orphan Works Reply Comments Page 2 of 7

http://www.copyright.gov/orphan/comments/reply/
Richard Brigante 

Lee Ostrander 

Joseph Schuster 

Rachel Nathan 

Nicholas B. Cueva 

Steve Horan 

M. Lane 

Jason Turgeon 

Andrew J. Murren 

Darren MacLennan 

Kevin G. Rhoads 

Alan Olsen 

Gregory Lloyd Nelson 

Tim Onosko 

Henry Velick 

Max Socol 

Eric J. Tomasi 

Michael Salsbury 

Tracy Boland 

Thomas Winningham 

Garth Black 

John Rook 

MacDonald Jackson 

Angel 

Joshua Stearns 

Daniel Ashbrook 

Oliver Will 

OWR0051-Ostrander 

OWR0052-Schuster 

OWR0053-Nathan 

OWR0054-Cueva 

OWR0055-Horan 

OWR0056-Lane 

OWR0057-Turgeon 

OWR0058-Murren 

OWR0059-MacLennan 

OWR0060-Rhoads 

OWR0061-Olsen 

OWR0062-Nelson 

OWR0063-Onosko 

OWR0064-Velick 

OWR0065-Socol 

OWR0066-Tomasi 

OWR0067-Salsbury 

OWR0068-Boland 

OWR0069-Winningham 

OWR0070-Black 

OWR0071-Rook 

OWR0072-Jackson 

OWR0073-Angel 

OWR0074-Stearns 

OWR0075-Ashbrook 

OWR0076-Will 

OWR0077-Mayfield 

U.S. Copyright Office - Orphan Works Reply Comments Page 3 of 7

http://www.copyright.gov/orphan/comments/reply/
James Mayfield 

Bryan C. Kennedy 

Sarah Nan 

Jacob Elias Levine 

Stephen McFarland 

Steve Darnall 

Mark Friedlander 

Sumana Harihareswara 

Allan Adler et al./Association of American Publishers, Association 

of American University Presses, and Software and Information 

Industry Association 

David Fine 

Joe Milazzo 

Randall C. Jimerson/Society of American Archivists 

Roberta J. Morris 

Nicholas S. Holmes/Whitney Museum of American Art 

Joseph L. Mabel 

Ben Wheeler 

Barbara Merrell 

Pamela Clark 

David H. Rothman/TeleRead 

Jim Konop 

Scott Bauer 

Pam Rietsch 

Michael K. Kirk/American Intellectual Property Law Association 

Dan Miller 

James C. McLaughlin 

Eyal Gura/Picscout.com 

OWR0078-Kennedy 

OWR0079-Nan 

OWR0080-Levine 

OWR0081-McFarland 

OWR0082-Darnall 

OWR0083-Friedlander 

OWR0084-Harihareswara

OWR0085-AAP-AUP-SIIA

OWR0086-Fine 

OWR0087-Milazzo 

OWR0088-SAA 

OWR0089-Morris 

OWR0090-WhitneyMuseum

OWR0091-Mabel 

OWR0092-Wheeler 

OWR0093-Merrell 

OWR0094-Clark 

OWR0095-TeleRead 

OWR0096-Konop 

OWR0097-Bauer 

OWR0098-Rietsch

OWR0099-AIPLA 

OWR0100-Miller

OWR0101-McLaughlin 

OWR0102-Picscout 

OWR0103-Saiyid 

U.S. Copyright Office - Orphan Works Reply Comments Page 4 of 7

http://www.copyright.gov/orphan/comments/reply/
Ameena Saiyid 

Joe. J. Ruiz 

Bob Clarida/Association of the Bar of the City of New York, 

Committee on Copyright and Literary Property 

Sam Mosenkis/ASCAP 

Jane C. Ginsburg and Paul Goldstein 

Andrew Burt/Science Fiction and Fantasy Writers of America 

Braden Cox/Competitive Enterprise Institute 

Pamela Curry 

Michael Keller/Stanford University Libraries 

Jim Danforth 

Daniel Siedell/University of Nebraska-Lincoln, Sheldon Memorial 

Art Gallery and Sculpture Garden 

Lawrence Lessig et al./Save the Music and Creative Commons 

Gregory B. Newby/Project Gutenberg Literary Archive Foundation 

John T. Mitchell/Interaction Law 

Ken Reeder 

Rosvita Rauch 

Douglas Lowenstein/Entertainment Software Association 

Carey R. Ramos et al./National Music Publishers’ Association and 

the Harry Fox Agency 

Sina Najafi/Cabinet Magazine 

Maureen Whelan et al./Various Art Museums (Denver Art 

Museum; Indianapolis Museum of Art; The J. Paul Getty Trust; 

The Los Angeles County Museum of Art; The Metropolitan 

Museum of Art; The Museum of Modern Art; The Solomon R. 

Guggenheim Foundation; Spencer Museum of Art; United States 

Holocaust Memorial Museum; The Wolfsonian - Florida 

International University) 

Bruce Funkhouser/Copyright Clearance Center 

Paul Bloore/Idée Inc. 

OWR0104-Ruiz 

OWR0105-NYCBar 

OWR0106-ASCAP 

OWR0107-Ginsburg-Goldstein 

OWR0108-SFWA 

OWR0109-CEI 

OWR0110-Curry 

OWR0111-StanfordLibraries 

OWR0112-Danforth 

OWR0113-SheldonGallery 

OWR0114-STM-CreativeCommons 

OWR0115-PGLAF 

OWR0116-InteractionLaw 

OWR0117-Reeder 

OWR0118-Rauch 

OWR0119-ESA 

OWR0120-NMPA-HFA 

OWR0121-CabinetMagazine 

OWR0122-ArtMuseums 

OWR0123-CCC 

OWR0124-Idee 

OWR0125-MPAA 

U.S. Copyright Office - Orphan Works Reply Comments Page 5 of 7

http://www.copyright.gov/orphan/comments/reply/
Steven J. Metalitz/Motion Picture Association of America 

Marvin L. Berenson/Broadcast Music Inc. 

Jonathan Band/Various Interests (American Association of Law 

Libraries; American Council of Learned Societies; American 

Library Association, Association of Research Libraries; College Art

Association; Educause; Glushko-Samuelson Intellectual Property 

Law Clinic of the Washington College of Law (American 

University); Library Copyright Alliance; Medical Library 

Association; Public Knowledge; National Humanities Alliance; 

Special Libraries Association; Visual Resources Association) 

Jennifer M. Urban/Various Film Interests (Association of 

Independent Video and Filmmakers; Doculink; Film Arts 

Foundation; FIND; International Documentary Association; IFP; 

National Alliance for Media Arts and Culture; National Video 

Resource) 

Jack Lerner/Internet Archive 

Nancy E. Wolff/Picture Archive Council of America 

Bruce Albrecht 

Debra LaKind/The Museum of Fine Arts, Boston 

June M. Besek/Kernochan Center for Law, Media and the Arts 

David Drummond/Google 

Paul Aiken/The Authors Guild 

Rachelle V. Browne/Smithsonian Institution 

Steven Marks/Recording Industry Association of America 

David Pierce 

Cynthia Turner and Brad Holland/IPA 

Mary Bigelow 

Ray Saintonge 

Jason Schultz/Electronic Frontier Foundation 

Jonathan Coder 

Willem Bakker 

Walter McDonough et al./Recording Artist Groups (Future of 

Music Coalition; American Federation of Radio and Television 

Artists; American Federation of Musicians of the United States 

OWR0126-BMI 

OWR0127-Various 

OWR0128-FilmInterests 

OWR0129-InternetArchive 

OWR0130-PACA 

OWR0131-Albrecht 

OWR0132-MFA 

OWR0133-Kernochan 

OWR0134-Google 

OWR0135-AuthorsGuild 

OWR0136-Smithsonian 

OWR0137-RIAA 

OWR0138-Pierce 

OWR0139-IPA 

OWR0140-Bigelow 

OWR0141-Saintonge 

OWR0142-EFF 

OWR0143-Coder 

OWR0144-Bakker 

OWR0145-FMC-AFTRA-AFM

 

U.S. Copyright Office - Orphan Works Reply Comments Page 6 of 7

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 Back to main Orphan Works page.

Home | Contact Us | Legal Notices | Freedom of Information Act (FOIA) | Library of Congress

U.S. Copyright Office 

101 Independence Ave. S.E. 

Washington, D.C. 20559-6000 

(202) 707-3000 

Revised: 25-Nov-2005 

and Canada) 

Christopher C. Wilson/Dramatists Guild 

OWR0146-DramatistsGuild.pdf

U.S. Copyright Office - Orphan Works Reply Comments Page 7 of 7

http://www.copyright.gov/orphan/comments/reply/

APPENDIX C 

ROUNDTABLE PARTICIPANTS

APPENDIX C 

ROUNDTABLE PARTICIPANTS

July 26, 2005 

Washington, D.C. 

Rayburn House Office Building, Room 2237

 ORGANIZATION(S) REPRESENTATIVE(S) 

1. American Federation of Television and Radio Ann Chaitovitz

 Artists 

2. American Folklife Center, Library of Congress Michael Taft

3. American Society of Media Photographers Vic Perlman

4. Association of American Publishers Allan Adler

5. Association of Independent Video and Jennifer Urban

 Filmmakers 

6. The Authors Guild Kay Murray

7. Christian Recording Studio Donna Daugherty

8. Cohen and Grigsby Lee Kim

9. College Art Association Jeffrey Cunard

10. Consortium of College and University Media Jeff Clark

 Centers 

11. Creative Commons, Save the Music Chris Sprigman
12. Director’s Guild of America Robert Rozen

13. Google, Inc. Alex MacGillivray 

 

14. Graphic Artists Guild Lisa Shaftel

15. Holtzbrinck Publishers Paul Sleven

16. Illustrators Partnership Brad Holland

17. The Library Copyright Alliance Jonathan Band

 Robert Oakley 

18. Motion Picture Association of America Fritz Attaway

19. National Public Radio Denise Leary

20. National Video Resources Brian Newman 

21. NetCoalition Jonathan Band

22. Science Fiction and Fantasy Writers of Michael Capobianco

 America 

23. Picture Archive Council of America Nancy E. Wolff

24. Photo Marketing Association Philip Moilanen

25. Professional Photographers of America, David Trust

 Commercial Photographers International, 

 International Association of Professional Event 

 Photographers, Student Photographic Society 
26. Purdue University Donna Ferullo

27. Public Knowledge Mike Godwin

28. Recording Artists Coalition Jay Rosenthal

29. Recording Industry Association of America Steve Metalitz

30. Society of American Archivists Gary Peterson 

31. Software and Information Industry Association Keith Kupferschmid 

* * * 

July 27, 2005 

Washington, D.C. 

Rayburn House Office Building, Room 2237

 ORGANIZATION(S) REPRESENTATIVE(S) 

1. American Folklife Center, Library of Congress Michael Taft

2. Artists Rights Society Ted Feder

3. Association of American Publishers Allan Adler

4. Association of Independent Video and Jennifer Urban 

 Filmmakers 

5. The Authors Guild Kay Murray

6. College Art Association Jeffrey Cunard
7. Creative Commons, Save the Music Chris Sprigman 

8. Graphic Artists Guild Lisa Shaftel 

9. Holtzbrinck Publishers Paul Sleven

10. Illustrators Partnership Brad Holland

11. Library Copyright Alliance Robert Oakley

12. Motion Picture Association of America Fritz Attaway 

13. Recording Artists Coalition Jay Rosenthal

14. Recording Industry Association of America Steve Metalitz

15. Software and Information Industry Association Keith Kupferschmid 

* * * 

August 2, 2005 

Berkeley, California 

Boalt Hall School of Law, University of California, Berkeley 

 ORGANIZATION(S) REPRESENTATIVE(S) 

1. Association of Research Libraries, University Brian Schottlaender 

 of California, San Diego Libraries 

2. Brigham Young University, Copyright Carl Johnson

 Licensing Office 

3. College Art Association, Visual Resources Christine Sundt

 Association 
4. Copyright Clearance Center Bruce Funkhouser 

5. Creative Commons, Save the Music Chris Sprigman

6. Defense Language Institute, Foreign Language Megan Lee

 Center 

7. Film Arts Foundation Gail Silva 

8. Film Independent Michael Donaldson

9. J. Paul Getty Trust Ken Hamma 

 Maureen Whalen 

10. Google, Inc. Alexander Macgillvray 

11. Houghton Mifflin Company David Eber 

12. Indiana University, Copyright Management Kenny Crews

 Center 

13. Internet Archive Brewster Kahle 

14. Miller-Gregson Productions Barbara Gregson 

15. Motion Picture Association Mark Meyerson 

16. Music Library Association Jerry McBride 

17. Recording Industry of America Steven Gottlieb

18. Science Fiction and Fantasy Writers of America Charlie Petit 
19. Stanford University Libraries Michael Keller

20. University of California, Los Angeles Libraries Gary Strong 

21. University of Louisville Libraries Dwayne Buttler

22. Wal-Mart Stores, Inc., Photo Marketing Joe Lisuzzo

 Association Mass Merchants Council 

* * *
APPENDIX D 

INFORMAL MEETINGS

APPENDIX D 

INFORMAL MEETINGS

 ORGANIZATION(S) REPRESENTATIVE(S) 

1. Directors Guild of America (October 3, 2005) Robert M. Rozen 

 Francis Grab 

2. Art Museums (October 18, 2005) 

Solomon R. Guggenheim Foundation Maria Pallante-Hyun 

 

Museum of Modern Art Nancy Adelson 

United States Holocaust Memorial Museum Karen Coe 

3. Google, Inc. (October 24, 2005) Alexander Macgillivray 

 Alan Davidson 

4. Association of American Publishers Allan Adler 

 (October 28, 2005) 

5. Creative Commons, Save the Music Chris Sprigman 

(November 1, 2005) 

 

6. College Art Association (November 1, 2005) Jeffrey Cunard 

7. Copyright Clearance Initiative, Peter Jaszi

 Glushko-Samuelson Intellectual Property Corie Wright

 Law Clinic, American University Washington Lauren Bocanegra

 College of Law (November 2, 2005) Rashmi Rangnath 

 

 
8. NetCoalition, Library Copyright Alliance 

 (November 3, 2005) 

NetCoalition Jonathan Band 

Association of Research Libraries Prudence Adler 

American Library Association Miriam Nisbit 

9. Independent Filmmakers’ Groups 

 (November 4, 2005) 

 

 University of Southern California, Jennifer Urban

 School of Law Intellectual Property Clinic 

 International Documentary Association Michael Donaldson

10. Motion Picture Association of America, Steve Metalitz

 Recording Industry Association of America 

 (November 9, 2005) 

11. Recording Artists’ Coalition (November 9, 2005) Jay Rosenthal

 Erik V. Huey 

12. Photographers’ Groups (Novermber 18, 2005) 

 Picture Archive Council of America Nancy E. Wolff 

American Society of Media Photographers Vic Perlman 

Professional Photographers of America J. Alexander Hopper 

 Stephen Morris 

13. Illustrators’ Partnership of America Brad Holland

 (November 18, 2005) Cynthia Turner

 

14. Kernochan Center for Law, Media and the Arts, June Besek

 Columbia Law School (November 30, 2005) Jane Ginsburg

 
15. The Authors’ Guild (December 1, 2005) Paul Aiken

 Jan Constantine 

16. Library of Congress, Motion Picture, Broadcast Sam Brylawski

 and Recorded Sound Division (December 6, 2005) Eugene DeAnna 

 

17. Public Knowledge (December 7, 2005) Heidi Wachs

 Alex Curtis