The document discusses Amoeba Records' "Vinyl Vaults" service, which digitizes and makes available over 600,000 titles of rare, out-of-print vinyl records. While this service aims to preserve obscure music, it raises legal issues because many of these works are likely "orphan works" whose copyright owners cannot be identified or located. Under copyright law, orphan works are still protected works and reproducing or distributing them without permission could result in infringement lawsuits. As such, Amoeba's service runs legal risks despite its good intentions, as it may be reproducing and distributing orphaned copyrighted works without authorization from the owners.

2. Amoeba, Orphans and . . .

4. Copyright is the exclusive right
to copy.
• (1) reproduce, or authorize others to reproduce, the
copyrighted work in copies;
• (2) recast, transform, or adapt the work, i.e., prepare
derivative works based upon the copyrighted work;
• (3) distribute copies of the copyrighted work to the public
by sale, rental, lease lending, or other transfer of
ownership;
• (4) perform publicly a copyrighted work;
• (5) display publicly a copyrighted work.

5. Copyrightable Subject Matter
literary works, pictorial/graphic & sculptural works, pantomimes & choreographic works

9. Non-copyrightable subject
matter
• Ideas
• Short phrases (names, titles, slogans)
• Not fixed in a tangible medium. . .

10. Works that Have Fallen into the
Public Domain

11. Middle Ground
“Never Never Land”
• Still protected by the Copyright Act
• But to whom does it belong??

12. Orphan Works

13. • An orphan work = copyrighted work for
which copyright owner cannot be
contacted.
• In some cases, only the name of its
creator or copyright owner is known, and
no other information can be established.

14. Legal . . . . . . . .
• A work can become an orphan because:
– the copyright owner is unaware of their ownership, or
– the copyright owner has died, or
– the copyright owner is a company that has gone out
of business, and it is not possible to establish to
whom ownership of the copyright has passed.

15. • In other cases, the author and origin of a
work simply cannot be determined, even
after great diligence has been conducted.

16. • Because the copyright owner cannot be
identified and located, orphan works arguably
cannot be incorporated into contemporary works
or otherwise made available to the public /
distributed / reproduced for fear the copyright
owner may reappear and sue for damages.

18. • Amoeba is a California record-store chain
with retail outlets in Berkeley, San
Francisco, and Hollywood.
• It also has the online service -- Amoeba
Music's Vinyl Vaults

19. Amoeba Records' “Vinyl Vaults”
out-of-print music service provides
an archive of obscure classics
– in which they have digitized 600,000 titles
of rare, out of print vinyl
-- Now available for download.

20. Is This Still
a
Problem?
Yes.

21. • On its face Vinyl Vaults sounds like a good idea: making
music available that might have otherwise become
forgotten, lost, scratched – we’re talking vinyl!
• Amoeba has been able to contact the rights-owners for
some of the Vinyl Vaults music, but . . .
• But then there are the others . . .

22. Much of the music Amoeba is
digitalizing, reproducing and
distributing are orphan works
Works for which they couldn’t find the rights-owner.

23. Is This a
Problem?
Yes.

24. Sure they’re Orphans, but
17 USC § 106 provides copyright owner
with the right to:
reproduce the copyrighted work in
copies;
distribute copies of the copyrighted
work to the public by sale, rental, lease
lending, or other transfer of ownership
Even Orphans Have Rights

25. So Vinyl Vaults Sounds a lot like
…
doesn’t it?

26. • The Copyright Office's most recent statement about the
use of orphan works sums it up:
• Under current law, anyone who uses an orphan work
without permission runs the risk that the copyright
owner(s) may bring an infringement lawsuit for
substantial damages, attorneys’ fees, and/or
injunctive relief unless a specific exception or
limitation to copyright applies.

27. • Recognizes that a productive and
beneficial use of the work may be
inhibited —not because user and owner
cannot agree on a license—but because
the user cannot locate the owner and thus
determine whether s/he may use the work.

28. • Amoeba is setting aside profits from the
orphan works which can be accessed by
rights-owners if need be . . . but . . .

29. • There's no such provision in copyright law for this, or
creating an exemption to infringement for orphan works.
• This presents a potential ticking-legal time bomb.
• Amoeba could find itself in real trouble, irrespective of its
good work, goodwill and above-board behavior.

30. Because, it’s not just a single
copyright that is at issue . . . and is
not only the Copyright Act that
Amoeba needs to worry about

31. • Music published in the United States has two sets of rights:
– the composition (a straightforward copyright) and
– the audio recording (protected separately by a "phonogram" right).
• Amoeba potentially runs into trouble with both.

32. • For compositions -- Are the works in the public domain, or are they orphaned?
• Published before 1923 -- In the public domain
• 1923 through 1977 – If published without a copyright notice, in the public domain
•
• 1978 to 1 March 1989 -- Published without notice, and without subsequent registration within 5 years, in the public domain
• 1923 through 1963 -- Published with notice but copyright was not renewed, in public domain
• 1923 through 1963 -- Published with notice and the copyright was renewed, 95 years after publication date
•
• 1964 through 1977 -- Published with notice, 95 years after publication date
• 1978 to 1 March 1989 -- Published without notice, but with subsequent registration within 5 years -- 70 years after the death of author
•
• 1978 to 1 March 1989 -- Created after 1977 and published with notice 70 years after the death of author.
• Some of what Amoeba has digitized may fall into the public domain category, but the earliest any work from second category can expire will
be 2018.

33. • For the audio recordings:
• No federal law covered audio recordings
until 1972
• All pre-1972 recordings remain under
state and common law until 2067.
• On February 15, 2067, all pre-1972
recordings are federalized for an instant
and then moved into the public domain.

34. • Given the material Amoeba says it’s
preserving, it is very possible – even
highly likely – that many of its digitalized
audio works remain under state/common
law protection until 2067.

35. Two Interesting Side Notes:
– 1. Some copyright scholars maintain that the pre-1972 laws related to audio
works provide that the party who possesses the master recordings also has the
phonogram right to duplicate them unless this issue is addressed in a recording
contract.
• Someone who owns the masters to Elvis albums may be owed money by the label(s)
that have released the works for 50 years?

36. • 2/ Because of mergers, acquisitions, and bankruptcies
of labels dating back more than 100 years, some current
record labels may have the phonogram rights to out-of-
print albums and not even realize it.
• RCA originally part of GE, and owned NBC.
• RCA bought Victor in 1929
• GE divested RCA in 1930, and bought it back in 1986 to get NBC
(later sold to Comcast)
• GE spun off RCA's catalog to Bertelsmann, which ultimately sold all
its music rights to Sony Music Entertainment
• Now need Sony’s permission to use a Victor recording.
.

37. Bringing this Full Circle . . . We
Have

38. Copyright is the exclusive right
to copy.
• Reproduce the copyrighted work; and
• Distribute copies of the copyrighted work.

39. Works are either protected by the
Copyright Act or not . . .

40. Orphan works
exist
and
nothing
about
their
orphan
status
deprives
them
of
protection
under
the
Act

41. Amoeba . . ..
» “
» Vinyl Vaults reproducing the orphaned copyrighted
works and distributing these to the public by sale,
rental, lease lending, or other transfer of ownership

42. No doubt a worthy cause . . .

43. But one fraught with legal danger

44. So where does it go from here?

45. Where do you think it should go?