The impact of orphan works legislation depends first upon your position as either:
  • A copyright owner (creator, artist, etc...)
  • A non-profit user of orphan works legislation (museum, library, university, church)
  • A for-profit user of orphan works legislation (publisher, author, retailer)

Since most of the concern has been from the visual arts community, I'll start here.

First, do you always register your works with the Copyright Office within three months of creation? Typically, you would do so on a form VA with a check for $45 mailed to the U.S. Copyright Office in Washington, DC. You may now also file electronically for $35 or use a form TX if the visual works are in a book such as a sample book. If you did not register your work within three months of publication or prior to infringement, statutory damages and attorney fees are not available although actual damages, profits, and an injunction against further use are available. Why does this matter? Under orphan works legislation, the biggest change is the lack of statutory damages and attorney fees if certain conditions are met. This is essentially the same place you will be under orphan works legislation with two primary exceptions:
  1. For any use of your work for museum, scholarly, educational, and religious purposes prior to your contacting the user, no compensation will be due
  2. In certain circumstances such as when the user has used your photograph or illustration in their book, the current print run can continue to be sold so long as back royalties are paid

If you have registered your work, attorneys fees and statutory damages are available unless the user proves to a federal judge that they have conducted a qualifying search for you. If the user cannot prove to a U.S. federal judge that such a search occurred, statutory damages and attorney's fees remain available as is the case today.

What if you are a non-profit user of orphan works legislation?

First identify the works you want to use. Then undertake a qualifying search as described in the legislation and its accompanying report. Keep all of the records of your search for the owner. If someone shows up claiming to be the owner, return their phone call / email immediately asking for whatever proof of ownership they may have. It is not unheard of for people to erroneously claim ownership of a copyrighted work used by others due to mistakes on their part (it’s not the same work or the rights to the work were sold to someone else) or outright fraud (someone is looking to make a quick profit by falsely claiming ownership and hoping that you will pay without checking into their claim - think Nigerian lottery scams). Owners may not have registered their works or have lost those records. If this is the case, this does not mean that they are not the owner nor can you continue to use the work without their permission. It simply means that more homework needs to be done by both parties.

And finally, until any orphan works legislation is enacted, none of this really matters. Owners and users will need to rely upon the fair use provisions of 17 U.S.C. 106 and the various compulsory license provisions that exist in U.S. copyright law to determine what works can be used without the permission of the copyright owner.