What happens when a copyright owner cannot be located?

When a good faith user wants to license a copyrighted work but cannot locate the owner, the work is considered to be an “orphan work.”  While there are provisions in the Copyright Act that would allow for use of an orphan work under some circumstances (such as §107 (fair use), §108(h) (use by libraries during the last twenty years of the copyright term), and §115(b) (statutory licenses for musical works, discussed in my previous post here), these existing provisions do not address the majority of orphan work situations.  The result is that good faith users are unable to legally license millions of copyrighted works. This unfortunate result is antithetical to the purpose of copyright law - which should be to promote the progress of science and the arts.

The orphan works problem is a by-product of a series of changes in the copyright laws that eliminated previous requirements that copyright owners publish, register, renew, and attach copyright notices to their works in order to receive copyright protection.  One of the most common misconceptions I frequently hear from clients is that the law requires affirmative actions by the owner (such as registration or affixing copyright notices) in order to protect a copyright – but in fact, the only thing that an owner must do to own a copyright is to create something original, fixed in a tangible medium.  There are additional benefits conferred to a copyright owner upon timely registration, such as the potential recovery of statutory damages and attorneys’ fees in an infringement suit.  However, registration isn’t required in order for a copyright to be valid.   

The problem that arises when copyright owners aren’t required to register copyrights or to attach notice of their claim to ownership is that many copyright owners go missing.  According to the Copyright Office, this orphan works problem is especially pervasive for photographs, but it also arises frequently with other types of works, such as books and musical works.

Previous attempts at legislation attempted to strike a balance between the rights of copyright holders and good faith users by allowing use of an orphan work as long as the user made a “reasonably diligent effort” to locate the copyright owner.  In the event the owner came forward at a later date, the remedies would be limited to payment of “reasonable compensation” for use of the work.  The proposed legislation was ultimately unsuccessful, so Congress at the early proposal stages did not specify what would constitute a “diligent effort” to locate the owner (i.e., what technology and/or search practices should be used); or how “reasonable compensation” would be determined (i.e., whether by mutual agreement, or a license fee determined by a court or by statute). 

The Copyright Office is currently accepting comments from interested parties regarding the problem of orphan works, in preparation for a recommendation to Congress for proposed legislation.   Comments may be submitted until March 6, 2013.  


The above advertisement was originally published in the New York Clipper in 1906.


Can a songwriter prevent other musicians from recording cover versions of the songwriter's original compositions?

The short answer, is no.  To begin, it's important to first distinguish between the two separate copyrights in music: 1) the copyright in the underlying composition; and 2) the copyright in the actual sound recording.  Although artists can refuse to license the use of their recordings, they cannot prevent others from recording cover versions of the underlying compositions.  Under Section 115 of the Copyright Act, the licensing of copyrighted compositions is compulsory, as long as the artist recording the cover pays the original artist a mechanical license fee. 

Usually, when artists want to record a cover version of a song, they contact the original songwriter (or music publisher, whoever administers the rights), and secure a mechanical license directly, often at a price less than the statutory rate under the Copyright Act (currently 9.1 cents or 1.75 cents per minute of playing time, whichever is greater).

However, if the original songwriter refuses to grant a license, the Copyright Act allows the covering artist to obtain a compulsory mechanical license, provided that the covering artist gives the original songwriter notice of the covering artist's intent to obtain the compulsory license, and pays a mechanical license fee to the original songwriter at the statutory rate.
Mechanical licenses allow the covering artist to sell copies of their cover version of another artist's song.  As discussed in a previous post - for public performances of music, license fees are generally covered under the venue's ASCAP, BMI or SESAC blanket licenses.


Congrats to Michael Raymond on winning the Sci-Fi award at the Austin film festival

Congratulations to client and former Nicholl Fellowship finalist Michael Raymond on winning the Dark Hero Studios Sci-Fi Award at the 2012 Austin Film Festival for his screenplay, The Domain. The 19th annual Austin Film Festival jury chose its 2012 Screenplay and Teleplay Competition winners from a record number of 6,500 submissions.  The award is well deserved, congrats Michael!



K2: Siren of the Himalayas premiere

Congratulations to client K2 Siren, LLC – their film, K2: Siren of the Himalayas will premiere on November 3rd at the BANFF Mountain Film Festival in Alberta, Canada.  A feature documentary shot in Pakistan, the film follows world-class alpinists Fabrizio Zangrilli and Gerlinde Kaltenbrunner as they attempt to reach the summit of K2, a highly treacherous mountain with three times the fatality rate of Mount Everest.  One out of every four alpinists have died attempting to reach the summit of K2 as a result of harsh weather, demanding climbing conditions, and high avalanche danger.

Please support these intrepid local filmmakers by following them on Facebook and Twitter. View the trailer here:






Can a political campaign use an artist's music if the artist objects?

As the presidential election season heats up, so are the legal claims of musicians who object to the use of their songs in connection with election campaigns.  So far this election year, the Silversun Pickups, rapper K'Naan, and Twisted Sister's Dee Snider have all objected to the use of their songs "Panic Switch," "Wavin' Flag," and "We're Not Gonna Take It" at Romney-Ryan political rallies.  Upon hearing that Paul Ryan was a fan of Rage Against the Machine, guitarist Tom Morello wrote a scathing op-ed letter entitled, "Paul Ryan is the Embodiment of the Machine our Music Rages Against," published in Rolling Stone.

Prior election campaigns have also received cease and desist letters and even been served with a few lawsuits brought by musicians objecting to the use of their songs at campaign rallies and in political advertisements.  The McCain campaign received cease and desist letters from both the Foo Fighters and the band Heart objecting to the use of their songs "My Hero" and "Barracuda" at campaign rallies.  During an ultimately unsuccessful Senate campaign, former Florida governor Charlie Crist was sued by the Talking Heads when their song "Road to Nowhere" was used in a web video targeting Crist's opponent, Marco Rubio.  As a condition of settlement, Crist was required to post this awkward apology video on YouTube: 

So can musicians prevent usage of their songs in connection with political campaigns? 

It depends on how the songs are used by the campaign.

If a song is used in a video advertisement without obtaining a synchronization license, the songwriter and/or music publisher can assert claims of copyright infringement against the offending campaign.  If a song is used at a campaign rally, the viability of a copyright infringement claim is less clear.  As explained in a previous post, most all musicians affiliate with one of the performing rights organizations – ASCAP, BMI, or SESAC – for the collection of royalties and enforcement of blanket licenses for the public performance of music in places such as bars, restaurants, nightclubs, and other public venues.  Both the McCain and the Romney campaigns have claimed that their usage of artists' music at campaign rallies was lawful pursuant to the venue’s public performance blanket licenses. 

However, the stronger claim for musicians to assert in objecting to the usage of their songs at campaign rallies is for false endorsement.  Under the Lanham Act, if the campaign’s usage of a song implies a sponsorship or endorsement by the band, the campaign could be held liable for false endorsement.

Until the extent to which a political party’s usage of artists’ music is litigated and defined by the courts, it seems the best approach for the political parties would be to ask for artists’ permission to use their music.  When artists object to the use of their music in connection with political campaigns, at a minimum, it results in unfavorable publicity for the candidate, but at worst, it could also potentially result in legal liability for false endorsement under the Lanham Act.