"Orphan Works" is a topic that's really riled up my cartooning and illustrating acquaintances. Senate Bill S2913 is the Shawn Bentley Orphan Works Act of 2008 and HR5889 is its counterpart in the House. If the legislation passes, it will dramatically change copyright law in the U.S., and not for the benefit of creative types. I'm trying to educate myself and haven't actually yet read the text of the bill, so my comments are tentative and based on what others tell me.
As I understand it, Orphan Works are creative products--books, articles, essays, photos, artwork, cartoons--that somebody wants to reproduce but can't find the original copyright holder to pay or ask permission. As the law stands now, you'd be a criminal fool to say "what the heck" and use it anyway; someone owns the rights to the work even if you don't know who. If the Orphan Works bill passes, it would make it legal to do a diligent search for the work's original owners and, if you can't find them, not only go ahead and use it but register it for protection under your own copyright. What exactly constitutes a "diligent search" isn't defined.
Here's part of the problem: before 1978, if you created something and wanted to copyright it, you had to pay a small fee and register it with the U.S. Copyright Office. But in 1978 the law changed so that creators obtain copyright to their work the moment they create it without doing anything at all. You don't have to register or pay a fee; if you made it, you automatically own the legal rights to it and get to decide what happens to it. (If you want, you can still register with the U.S. Copyright Office, which does leave a useful paper trail. But you don't have to.) From the creator's point of view, that's great. It really cuts down on the hassle and expense. The drawback is that it doesn't create an official record for someone else to follow.
So let's say you wrote or drew something a few years ago. Maybe the publisher went out of business, maybe your signature or byline isn't legible, maybe your work is clearly marked “©1989 Bob Smith” but there are a million Bob Smiths in America so good luck finding the right one. Maybe you've got an old family photo posted on the Web. Or maybe you created one of those memes that just floats around the Internet. Next thing you know, someone else could take your work, register it as theirs, and crank out t-shirts, posters, books, movies and breakfast cereals based on your stuff. They could even prevent you from using it. And there's nothing you could do about it.
You can understand where the outrage comes from. Some artists call it legalized theft. Some imagine giant corporations laying claim to all the work they can find and bulldozing any creators who come out of the woodwork to object. Some fear the establishment of a registration clearinghouse--essentially a return to the pre-1978 situation--that could put them out of business (imagine being a magazine cartoonist creating 50 gags a week and having to register them all at $20 a pop).
I can actually see both sides of the issue. As a writer, I'm a very vigorous defender of copyright and I'd be outraged if someone took my words, art or characters and used them without my permission (if there's any exploiting to be done, it'll be by me!). I created 'em, I say what happens to 'em. I really despise the whole modern song-sharing software-pirating mash-up-media "information should be free" ethic. It's disrespectful. As I've written before: especially in a society that produces so few material goods anymore, the most valuable products we have are ideas; if you think my ideas are good enough to steal, you ought to think they're worth asking permission or paying for.
On the other hand... I'm working on a project now that incorporates bits of old artwork. One was copyrighted by General Motors in the 1940s, so I wrote GM (they've got a whole department for the purpose) and paid them a fair fee to license its use. Another was produced by a now-deceased artist in the 1950s, so I tracked down his estate and got their permission to use it. But there are other pieces done for publications long defunct by obscure artists long dead who as far as I can tell left no heirs. They're terrific work I'd really like to use but I can't and won't. That's a shame, and it also seems contrary to the original spirit of copyright, which was to give creators a reasonable time to profit from their work before freeing it for use by everyone (that's called "public domain," which is why anyone who wants to can write a Dracula or Sherlock Holmes story). Instead, the work is locked away and nobody benefits.
Still, it seems clear to me that the current Orphan Works bill is an abomination that ought to be stopped. It's an overkill solution to an insignificant problem. I'd urge you to write your legislators blah blah blah, and I have, but I don't really expect you to. I just thought you'd like to know what they're up to and why your favorite cartoonists may seem grouchy lately.
My copyright registration for Mom's Cancer.
So don't even think about trying any funny business.