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Abstract

Laurence Peter once said that "[o]riginality is the fine art of remembering what you hear but forgetting where you heard it." Yet that clever quip is itself unoriginal. Although there may be nothing new under the sun--the arrangement of different bits of existing cultural matter in new and interesting combinations is the source of much originality. Yet today much of our cultural raw material is outside the reach of creators because of the orphan works problem. This problem renders untouchable a large swath of existing artistic, literary, and other works because if a work's copyright owner cannot be found to secure their permission to use the work, then no one will ultimately use the work lest they risk liability for copyright infringement. Several solutions to this problem have been suggested, but most proposals are cumbersome or incompatible with political and legal reality. However, there might be a simple solution to the orphan works problem that respects the rights of copyright owners while freeing up works for which the rightsholders cannot be found. If a would-be user of a copyrighted work completes a reasonable search in good faith and fails to find the rightsholder, the user should be able to use the work. If she is later sued, she should be able to defend in court by showing that she diligently did her best to find the copyright owner. Copyright law does not provide for such an affirmative defense right now. Part I of this Article defines the orphan works problem and provides examples of how it interferes with the use of creative works. Part II describes the causes and costs of the orphan works problem. Part III outlines and critiques four of the leading proposed solutions to the orphan works problem. Part IV proposes a new and practical solution to the orphan works problem.

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