Once upon a time, a performing artist signed with a record label (let’s call the artist Jimmy Hendricks, and the label Toe Jam Records). Hendricks had a pretty decent career, touring around the country, but his record didn’t make much of a splash, failing to receive significant airplay or “move units,” in recordbizspeak. Then, in 2010, an up-and-coming hip-hop artist dropped a pitch-shifted guitar lick from Hendrick’s tune “I Enjoy Rock ‘n’ Roll” into his bangin’ new track. The hip-hopper loved what this lick did for his song, but was justifiably worried about being sued for infringement. He knew that Jimmy Hendricks was the original artist, and would have been happy to negotiate terms under which the snippet could be used (and Hendricks compensated).

But the law said no.

You see, Hendricks’ label owns the sound copyright in “I Enjoy Rock ‘n’ Roll.” That means that any negotiation to license the song for a new use has to be with Toe Jam Records, and not Hendricks. Unfortunately, Toe Jam got bought out by another label, and then another one after that, and after that. The final label to own the recording closed its doors in 1992. The work has been orphaned. This means that our intrepid hip-hopper won’t be able to use the work, and if he does, he’s potentially on the hook for major damages if the copyright owner suddenly comes forward. Meanwhile, Jimmy Hendricks gets no compensation, no attribution — nada.

That doesn’t seem fair, does it?

Policymakers have been trying to find a solution to the problem of orphan works for at least a decade. With guidance from the US Copyright Office, Congress put forth a bill in 2008, which passed in the Senate but died in the House of Representatives. Since then, there has been little movement towards “fixing” orphan works. That is, until just recently.

The Copyright Office today closed the filing window for initial comments in its current orphan works inquiry (don’t worry, the reply phase is open until 5PM on March 6, 2013). As we did in 2003, Future of Music Coalition filed comments in the current proceedings — check ‘em out here. (We also have a handy fact sheet.)

FMC supports an orphan works solution for several reasons. One is increased legal access to the cultural output of humanity. Another is the ability to more freely build on yesterday’s creations in the form of new works. Previous legislation made an attempt to balance the interests of original copyright owners and new users. It offered the new user protections against the harshest of liabilities, provided some steps were followed — including undertaking and documenting “a qualifying search, in good faith” — to find the copyright owner.

Unfortunately, the 2008 bill failed to include the original artist in any of its provisions.

Our concern is that previous proposals would not only give creators no decision-making power in the absence of a copyright owner, it would also override any original contract terms that state that the copyright owner needs to get the artist’s approval before permission to use the work is granted.

To address this oversight, FMC suggests that the remedies available to copyright owners be extended to the original author/performer, provided that the original copyright owner does not come forward within a set term. We propose that, if in the course of a normal “qualifying search” the identity of the author/performer becomes known, the new user simply record their name along with the other search documentation (the specifics of which are to be determined by the Copyright Office). This avoids an additional search burden on the new user, and would create the opportunity for an author/performer to be included in negotiations around the new use, in the instance that the copyright owner remains MIA.

Under our proposal, remedies available to the author/performer would include:

1. Attribution. As Peter DiCola and Kembrew McCleod’s excellent book on sampling culture and the law, Creative License, points out, many artists whose music is used in new expressions desire recognition for their contributions. We think this is a meaningful way to address the problem as it intersects with orphan works.

2. Compensation. The 2008 bill limited damages for a new user, provided they undertook a qualifying search and were willing to enter into negotiations to pay the copyright owner for the use under fair market licensing terms. Unfortunately, there would be no obligation to pay the artist, even if their identity is known. Our proposal would compensate the original author/performer. If the copyright owner comes forward (and the author is known), the rightsholder would simply pay the author under prior contractual terms. If the copyright owner fails to come forward within a set term (we suggest 2-3 years), the artist stands in the place of the rightsholder and is able to negotiate terms with the new user.

3. Refusal of use. If the work isn’t sufficiently transformative, the author/performer is able to prevent the new use. This is important as oftentimes, an artist will forbid certain uses — such as advertising — in their contract with a label or publisher. We think these wishes should be respected even when the copyright owner is not locatable.

FMC believes that an orphan works solution is not only desirable, but also achievable.  By encouraging new users to recognize the contributions of artists, an important balance is struck. Likewise, the opportunity to receive compensation within narrow circumstances would help rectify a long and troubling history of remedies that are rarely, if ever, shared with creators, such as monetary awards from file-sharing lawsuits or revenue from equity arrangements between content owners and digital music services.

We’ll be keeping an eye on developments and look forward to engaging further in the reply phase. Musicians and songwriters — we encourage you to file your own comments, too.