The Orphan Works Problem: Preserving Access to the Cultural History of Disadvantaged Groups

Southern California Review of Law & Social Justice, Vol. 20, 2011

48 Pages Posted: 24 Aug 2010 Last revised: 29 Aug 2010

Brianna Dahlberg

Eisner Jaffe

Date Written: May 19, 2010

Abstract

Orphan works are copyrighted works whose owners are difficult or impossible to find. They include a vast number of old works in museums, archives and libraries that are not being commercially exploited by rights holders because they are out-of-print, unpublished or anonymous, but nonetheless have cultural or historical significance. However, if the institutions cannot locate the rights holders, they cannot publish or publicly display these works without risking a copyright infringement lawsuit should the rights holders come forward in the future.

This Note addresses a new aspect of the orphan works problem: its disproportionate impact on works created by racial and religious minorities, women, Native Americans and other indigenous people, and the poor. Locating rights holders for early-twentieth century works by these groups tends to be especially difficult for a variety of reasons. Minority and poor white musicians were routinely excluded from performing rights organizations until the 1940s and were less likely to register their copyrights. Women and minority visual artists often created their works apart from the established gallery system, and their artworks tend to be less exhibited and well-known. The identifying information for folk art and traditional Native American art is often lost. As a result, many of these important works remain locked away in archives and inaccessible to the public.

This Note proposes a solution to the orphan works problem with the goals of promoting broader cultural access and participation in mind. I evaluate four potential approaches, and conclude that the Nordic countries’ solution of extended collective licensing would best serve the goal of promoting access to cultural works of disadvantaged groups while fairly compensating rights holders who do come forward.

Keywords: copyright, orphan works, minorities, women, extended collective licensing

Suggested Citation

Dahlberg, Brianna, The Orphan Works Problem: Preserving Access to the Cultural History of Disadvantaged Groups (May 19, 2010). Southern California Review of Law & Social Justice, Vol. 20, 2011. Available at SSRN: https://ssrn.com/abstract=1664765

Brianna Dahlberg (Contact Author)

Eisner Jaffe

9601 Wilshire Blvd.
Suite 700
Beverly Hills, CA 90210
United States

HOME PAGE: http://eisnerlaw.com

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