They belong to someone, but it's hard to tell to whom. Many creative works fall into this category because (a) corporate sales, mergers and consolidations
make it difficult to track ownership, (b) copyright protection now begins automatically upon creation, and (c) the length of copyright terms is now longer.
Under current copyright law, if you make a recording, that work is automatically protected from the moment of its creation until 70 years after your death.[1] If you sign a record label contract in which your copyrights are transferred to the label (which is the typically the case), the record label owns your copyrights for the term of life + 70 years, if you do not exercise your termination rights. If someone else wanted to license it or re-release it during that time, he/she would need to identify and locate you – or your record label – to ask permission. After the life +70 years term, your work moves into the public domain, in which no permission is needed to use your work.
In the past, creators needed to renew copyrights after their original term expired in order to retain copyright protection. The new copyright term is one longer length of time, with no renewals. Now creators already have the control, and must grant permissions to use their works. This makes it exceedingly difficult to engage in cataloging efforts, since the vast majority of created works – books, music, and other media – are protected from reproduction under the copyright term, even if they are currently out of print or unavailable to the public.
Orphan works probably comprise the majority of the creative works of 20th century. Orphan works exist in a purgatory of sorts, not able to be used in new creative efforts or made available to the public due to uncertainty over the status of their ownership.
Why is it important and what is being done to fix this scenario?
There are two primary reasons why orphan works is an important issue for the music community. First, a number of recordings are no longer commercially available to the public. Second, the law also makes it difficult for musicians to license or use older works in new songs or recordings. Creators are often forced to abandon projects that include orphan works. This is not only a loss for creative artists, but also for the public and our collective culture.
Accessing out of print works
Tens of thousands of recordings are commercially released every year, but only a handful of them end up being viable enough to be kept in print for decades. The vast majority of releases fade from the stores and mailorder catalogs as the labels and retailers make space for new product. When the recordings are no longer commercially viable enough for the label to continue manufacturing the albums/CDs, they tend to fall “out of print”.
Despite their limited commercial value, the labels maintain ownership of the copyrights for these releases. But think about the number of record labels that have shut down, merged, or sold their assets to another record label – often repeatedly – and you can see how this problem manifests itself. In many cases, the labels themselves don’t even know what they own. Oftentimes the cost of finding the owner is so high that creators can't use or license orphan works, even when they'd be willing to pay to get them back in print.
The challenge for using older works
A similar problem exists for today’s musicians interested in licensing or sampling older works. Imagine you are a musician who is recording a new album to be released next year. You remember hearing a great piece of music at your friend's house and decide that a sample of it placed into one of your new songs would add just the right vibe.
Copyright law requires that you gain permission to use someone else's work, unless it is a fair use. This means you'll have to both identify and locate the copyright owners of the piece of music you want to use in your new song and the recording being sampled. You should search the databases of ASCAP, BMI, SESAC, the US Copyright Office, and the internet for the answers. If you are able to identify and locate the copyright owners, you can then work together on an agreement about the use of the sample in your song/recording.
But what if you can’t find the owners?
If you have searched without being able to identify and locate the copyright owners, this song/recording may be an orphan work. The music business is fluid, and ownership of any given song/recording might pass through many hands over a short period of time because of legal contracts and record label mergers and acquisitions. If the song you want to sample is an orphan work, there is currently no way for you to legally use the song.
Efforts to fix orphan works
In 2005, the US Copyright Office examined issues raised by orphan works. The Copyright Office received hundreds of comments in this proceeding, which was followed up by roundtable discussions and the release of a full report in January 2006 that concluded:
The orphan works problem is real.
The orphan works problem is elusive to quantify and describe comprehensively.
Some orphan works situations can be addressed by existing copyright law, but many cannot
Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.
In May 2006, Congressman Lamar Smith introducedHR 5439, the Orphan Works Act of 2006. The bill allowed for more use of works for which the copyright holder can’t be found, and limited liability for those who make a “reasonably diligent search” to find a copyright holder but cannot. Roundly praised by many in the creative community, the bill passed out of committee but was not taken up by the full House. A similar bill was not reintroduced in the 110th Congress.
What musicians can do
Musicians that are interested in making older recordings available should support changes to the copyright law similar to those proposed by the Orphan Works Act of 2006 that would limit copyright infringement damages on anyone that performed and documented a “reasonably diligent search in good faith” to find the copyright owner. While there is no particular remedy yet, many groups continue to propose solutions.
Musicians Get the Hint About Health Insurance
Two Raleigh concerts in memory of musician Drew Glackin; proceeds go to Glackin’s family and Future of Music Coalition’s Health Insurance Navigation Tool
April 10, 2008 Press release FMC's HINT program
New York State Music Education Events Examine Crucial Issues Facing Artists Forums in Rochester (April 28), Syracuse (April 29) and Albany (April 30) to focus on music, media, technology and policy issues for songwriters, composers and performers from all genres.
March 25, 2008 Event details | RSVP
Pop Rockers OK Go "Tour" Congress in Support of Net Neutrality
Damian Kulash and Andy Ross discuss the importance of open Internet structures to musicians; Kulash testifies before House Judiciary Committee.
March 13, 2008 Press release
Spoken testimony
Written testimony
Rock the Net
New York State Music Education Events Examine Crucial Issues Facing Artists Kick-off forum in Buffalo on April 2 to focus on music, media, technology and policy issues for songwriters, composers and performers from all genres. March 7, 2008 | Event details
Philly Bands Rocking for Net Neutrality February 23 Sugar Town show at Tritone in Philadelphia will showcase lady rockers and DJs, as well as musicians' support for net neutrality. February 15, 2008
OK Go and Bonerama Rocked DC for New Orleans Musicians Bands also champion FMC's "Rock the Net" campaign for net neutrality February 2 benefit show at DC's 9:30 Club raised over $8,000 for New Orleans musicians. Bands played cuts off their new benefit EP, You're Not Alone, available on iTunes on February 5. February 4, 2008
Upcoming Washington, DC show and benefit EP from OK Go & Bonerama
On February 2, OK Go and Bonerama will play a benefit at D.C.'s 9:30 Club in support of You're Not Alone - an EP to support Sweet Home New Orleans and Al "Carnival Time" Johnson. January 21, 2008
Successful New Orleans Concerts Aid Big Easy Musicians
Last week, two benefit concerts raised over $6,000 for Sweet Home New Orleans - a coalition of non-profit organizations that helps find affordable housing and provides rental assistance for the city's musicians - and Big Easy music legend Al "Carnival Time" Johnson.
January 15, 2008 Press release | Event details
Ann Chaitovitz Appointed
FMC's New Executive Director A proven leader in musician and public policy issues, Chaitovitz replaces founding Executive Director Jenny Toomey January 3, 2008
Concerts for New Orleans Musicians Bring Artists Together Two New Orleans shows and upcoming benefit CD from OK Go and Bonerama January 2, 2008
FMC's Jenny Toomey Appointed Program Officer for Ford Foundation
Kristin Thomson to Serve as FMC’s Interim Executive Director Michael Bracy to Chair FMC Board of Directors November 26, 2007
Seattle "Rocked the Net" Rep. Jay Inslee advocated network neutrality;
joined by rocker Matt Nathanson, Reclaim the Media, FMC and local music business representatives October 31, 2007
Rock the Net: Campaign for Net Neutrality Rocks Seattle
Teleconference with Rep Jay Inslee on Tuesday, Oct 30. Matt Nathanson performs at Seattle’s Crocodile Café on Tuesday, Oct. 30 October 26, 2007
Future of Music Policy Summit to Tackle Critical Issues at the Intersection of Music, Law, Technology and Policy Sen. Byron Dorgan and Sen. Ron Wyden to Deliver Keynote Addresses
Mac McCaughan, Bob Mould, Marybeth Peters of the U.S. Copyright Office and More Than 90 Other Panelists Confirmed. September 10, 2007 Summit home page Press Credentialing
AT&T's muting of bands points toward a pattern of silencing political speech Content monitor did not edit out 20 instances of curse words during Pearl Jam webcast, despite AT&T claim it hires monitors to block "excessive profanity". August 13, 2007
Top musicians, lawyers, technologists confirmed for FMC's 7th annual Policy Summit August 13, 2007 Press Release Summit home page Press Credentialing
FMC Statement on AT&T Silencing Pearl Jam's lyrics during Lollapalooza webcast August 9, 2007
FMC Statement on Federal Trade Commission Report on Net Neutrality June 29, 2007
FMC files testimony with House Small Business Committee on CRB Webcasting Rates June 27, 2007 Press Release | Testimony
Clear Channel strips local, independent artists of digital performance royalties
FMC has discovered that Clear Channel's online application for local and independent artists to submit their music for airplay on each of its stations requires the artist to approve a licensing agreement that does away with their digital performance right. June 22, 2007
Low Power Radio Gets New Push in Congress
Congress introduces bills to create hundreds of new low power FM radio stations to cities and suburbs across the country. June 22, 2007
FMC Announces Dates for 7th annual Policy Summit
September 17-18, 2007
GWU Betts Theatre, Washington, DC June 11, 2007
FMC Organizes "Musicians Bringing Musicians Home II"
A Benefit Concert on May 27 at New Orleans' Tipitina's for Sweet Home New Orleans featuring: Indigo Girls, Damian Kulash of OK Go, Jim James of My Morning Jacket, Matt Nathanson, Pamela Z...and special guests
May 23, 2007 Press Release | Details
Congressman Mike Doyle to address conference on music, law and technology
May 2 event will bring together leading experts from worlds of music, law, technology and policy. April 25, 2007
A2IM Endorses Rock the Net Campaign
American Association of Independent Music urges its label members to join the campaign for network neutrality. April 17, 2007
Music Mashes with Policy at upcoming Technology and IP Policy Day
May 2 event will bring together leading experts from worlds of music, law, technology and policy. April 16, 2007
FMC Applauds FCC's Payola Settlement
Payola agreement by FCC and big broadcast chains represents a major - but tentative - step toward once again opening the nation's airwaves to local music and voices. April 13, 2007
Rep. Edward Markey, Ted Leo kick off "Rock the Net"
Nearly 150 artists and labels have already signed onto campaign for net neutrality
March 27, 2007 Press Release | Rock the Net
Major Artists To Join Launch of Rock the Net Campaign for Net Neutrality March 23, 2007
FMC Statement on FCC's "Rules of Engagement" On Payola March 5, 2007
FMC Files Reply Comments in FCC Media Ownership Proceeding January 16, 2007
FMC Statement on FCC Payola Settlement
FMC's statement on FCC's reported consent decree with the broadcast industry in regards to payola. January 16, 2007
Radio Station Ownership Consolidation Shown to Harm Musicians and the Public
FMC study shows that the rapid consolidation of the commercial radio industry that followed the Telecommunications Act of 1996 has led to a loss of localism, less competition, fewer viewpoints and less diversity in radio programming in media markets across the country.
December 13, 2006 Press release Report details
FMC Organizes Musicians Bringing Musicians Home Benefit concert at New Orleans' Tipitina's on November 6th featuring Steve Earle, Mike Mills, Allison Moorer, Tom Morello, Boots Riley, Corin Tucker and special guests.
October 23, 2006 Read press release Read press coverage
Job
Losses Associated with Radio Consolidation Undermine Localism and Diversity FMC, Newspaper Guild and Consumers Union urge FCC to take employment effects
of their policies into account during upcoming review of media ownership rules August 9, 2006
FMC Releases Research on Employment and Wage Effects of Radio Consolidaton August 9, 2006
FMC on Preserving the Dynamism of the Internet Opinion Piece on ABC News June 29, 2006
FMC Statement on Senate Commerce Committee Vote in Support of LPFM June 28, 2006
FMC Statement on FCC Media Ownership Proceeding June 21, 2006
Indie-rock revolution, fueled by net neutrality Op-ed by FMC's Jenny Toomey and Michael Bracy June 13, 2006
Pearl Jam Donation To Help Musicians Help Themselves Proceeds From Washington, DC Appearance to be Donated to FMC Artist Research
Council May 25, 2006 Press Release
FMC signs on letter to preserve net neutrality May 17, 2006
FMC Announces Dates for Sixth Annual Future of Music Policy Summit
October 5-7, 2006 Media Advisory May 15, 2006
FMC Statement on Release of Feingold's Radio and Concert Disclosure
and Competition Act of 2005 November 18, 2005
FMC Sends Letter to Senate Commerce Committee in Support of a
Public Performance Right for Sound Recordings October 19, 2005
Top Names in Music, Law, Technology and Policy Return to Debate Critical
Issues at Fifth Annual Future of Music Policy Summit
September 6, 2005 Media Advisory | Policy
Summit home page
FMC Announces Health Insurance Navigation Tool
August 9, 2005 HINT Home Page
FMC Press Release: Music Mashes with Policy at DC Policy Day April 8, 2005
FMC's Michael Bracy Testifies in front
of House Judiciary Committee on "Digital Music Interoperability" April 6, 2005
FMC files comments at US Copyright Office on "Orphan
Works"
Comments also ask Copyright
Office to consider status of out-of-print recordings March 25, 2005
FMC Sends Letter to Senate Stating Concerns about S 193, Broadcast Decency Enforcement
Act March
10, 2005
FMC and artist groups file joint reply comments at FCC on localism in broadcasting,
MB Docket 04-233
January
3, 2005 PDF of document
