Very simply Orphan Works are creative works which have been produced (including photography, music, articles, cartoons, books, painting the list goes on) but the creator of said creative endeavour (or copyright holder) cannot be found to gain permission to reproduce the work.

At the moment, if this occurs, then the photograph (insert relevant option) just cannot be used but with the new legislation here is what would happen. The hopeful user of the creative work would firstly have to exercise “due diligence” to try and track down the copyright holder. If they cannot be found then the the person wishing to use the work would be able to go ahead but must ensure this useage is logged onto a register. The problem seems to be just what exactly is “due diligence” and is this pushing creatives to have to submit everything they produce onto a register so putting the onus onto the creator to protect.

This is a massively contentious area, many creatives are hugely worried and justifiably confused as there seems to be many arguments and scenario’s. That alone makes me think this is an ill-thought out Bill. I do not claim to understand properly and so I will not try and argue things out but I do urge you all to read more on this subject (as I will) we need to protect our right to own and control what we produce.

Pro-Imaging (a UK-based photographers organisation and discussion list) have an Action Alert on their site at the moment and have sent a lobbyist to meet with Senators and Representatives in Washington to educate them to the dangers of the Orphan Works 2008 legislation. Photo Business News has some interesting discussion on their site and to balance things a little Chase Jarvis’ site has arguments on the other side including a link to the ASMP (American Society of Media Photographers) site; this organisation have come out in favour of the Bill.