On September 22, Law360 published an article positing the question, “What should be done to more fairly enable the use of orphan works?” after the ruling determining that Warner/Chappell Music, Inc. does not own a valid copyright on “Happy Birthday to You.” Oren Warshavsky, head of BakerHostetler’s national Copyright, Content, and Platforms team and one of Law360’s Voices on the Bar commented:
“Discussions concerning new paradigms for orphan works tend to focus on old works whose authors have long been forgotten. Examples abound of researchers in dusty archives stumbling upon rare photographs, which publishers then eschew due to risk of suit. Any solution to the orphan works dilemma has an obvious centerpiece: a compulsory license system. But an orphan work regime must also consider newer works and protect against works being opportunistically thrust into “orphanage.” The proliferation of new media has resulted in all copyright owners — from the largest publishers to individual artists — finding their work exploited without license or attribution. Before treating a work as an “orphan,” the new regime should require a diligent search — and eliminate the temptation to utilize unauthorized or uncredited uses of the copyrighted work as a predicate to labeling the work an “orphan” and subjecting its owner to a compulsory license. Diligence requirements vary by work; to balance competing concerns, diligence standards should be established by agreement among the government, rights holders and industry organizations. Once an unsuccessful, diligent search for the copyright owner is documented, a compulsory license to the orphan copyright should be made available.”
Read the full article on Law360.com (subscription required).