Save the orphans

Laurence Peter once said that originality is the fine art of remembering what you hear but forgetting where you heard it. Yet that clever quip is itself unoriginal. Perhaps Peter conveniently forgot having come across similar expressions of the same sentiment.

“Books serve to show a man that those original thoughts of his aren’t very new after all,” Abraham Lincoln is quoted as saying. And before him, Voltaire noted: “Originality is nothing but judicious imitation. The most original writers borrowed one from another. The instruction we find in books is like fire. We fetch it from our neighbors, kindle it at home, communicate it to others, and it becomes the property of all.”

While there may be nothing new under the sun–including that hoary expression, which comes to us from the Book of Ecclesiastes–the arrangement of different bits of existing cultural matter in new and interesting combinations is itself the source of much originality. Take for example one of the finest modern rearrangers, Quentin Tarantino.

Tarantino’s films are some of the most interesting in theatres today, yet they are largely homages to other movies and other pieces of pop culture. One of his greatest opuses, True Romance, begins with a depiction of the hero’s adoration of classic Sonny Chiba kung-fu movies–no doubt a reflection of Tarantino’s own feelings. The main characters meet at a rundown theatre where they watch Chiba’s Street Fighter trilogy on the big screen. Much of the success of Tarantino’s Pulp Fiction and Reservoir Dogs is attributable to those films’ soundtracks of forgotten tunes from the 60s and 70s, which Tarantino himself compiled and which are indispensable to the finished product. The ear-slicing scene in Reservoir Dogs would simply be gratuitous if Stuck in the Middle With You by Stealers Wheel were not playing on an old radio.

Yet today much of the cultural raw material is outside the reach of creators. To show bits of Sonny Chiba movies or play Stuck in the Middle With You in his movies, Tarantino had to approach the owners of the copyright of those works and ask for permission. If he did not, and used the bits anyway, the rightsholders could sue him for copyright infringement and collect hefty damage awards. Licensing the rights to use these relatively popular pieces of culture, however, is not very difficult. But what if Tarantino could not find the copyright owner of a film he wanted to use? Suppose he found a silent film from the 1920s, loved it, and wanted to use a bit of it in his next movie. He sets out to find the rightsholder to ask for permission, but discovers that the company that produced the film has long gone under and no trace remains of its heirs. If he uses the film he risks the possibility that the long lost owner of the copyright will step forth and sue him. So, even though the rightsholder may well be willing to give permission, Tarantino might choose not to use the film out of fear of liability. For this we are all culturally poorer. This disconnect between rightsholders and potential users is vividly known as the orphan works problem.

While he’s looking for the rightsholder, Tarantino notices that the film is disintegrating because it is recorded on very old and fragile media. He could save the film, but doing so would require copying it to a more stable media, such as a digital disc. But such copying is also a technical infringement of copyright for which he could get sued. If he chooses not to risk it, the film might be lost forever, another cultural loss.

Alternatively, Tarantino might choose to use the film without permission. But in order to insure against the possibility of litigation he charges a risk premium. That is, the movie tickets and DVDs we buy will be more expensive than they otherwise would be if the risk of litigation didn’t exist. This leaves us with fewer dollars with which to buy–and support–culture.

There might be a simple solution to the orphan works problem that respects the rights of copyright owners while freeing up works the rightsholders of which cannot be found. If a would-be user of a protected work completes a reasonable search in good faith and fails to find the rightsholder, the user should be able to go ahead and use the work. If he is later sued, he should be able to defend in court by showing that he diligently did his best to find the copyright owner. Of course, the user should have to share any future profits with the rightful owner of the work, but he shouldn’t face the stiff penalties of copyright infringement that keep so many orphan works from being used. Such a system would also give an incentive to rightsholders who value their works to make sure they make it relatively simple to be found so that they can grant or deny a license as they see fit.

New works enrich our culture, and their creators depend on the building blocks of past works–including orphan works. It is time to free these works from their murky legal status. If we don’t, we might soon find that there’s not much we can say because, as Thomas Bailey Aldrich wrote,

No bird has ever uttered note
That was not in some first bird’s throat;
Since Eden’s freshness and man’s fall
No rose has been original.

Jerry Brito is editor of Brainwash. His Web site is jerrybrito.com.