H.R. 5439, the Orphan Works Act of 2006, was introduced by then House Judiciary Committee Intellectual Property Subcommittee Chairman (now full Committee Ranking Member) Lamar Smith of Texas on May 22, 2006. The language and approach of H.R. 5439 was based upon the recommended language of the Copyright Office, modified to reflect the discussions hosted by the Intellectual Property Subcommittee that fall. I had the privilege of being the lead staffer in these discussions. I can be seen in the video of the March 8, 2006 oversight hearing on orphan works sitting next to the then-Subcommittee Chairman Lamar Smith of Texas.

The legislation allowed for a limitation on remedies, i.e. no statutory damages or attorneys fees, to be imposed against the user of a copyrighted work if the following was true:
  • The user undertook a reasonably diligent, good faith search to locate the owner and could not find him or her
  • The user identified the owner as much as possible when using the work (such as listing the initials of the photographer if they were on the back of the original print)
  • With an exception for ongoing uses, stopping use of the work if the owner reappears and says “stop”
  • Paying back royalties for the use on a “willing seller, willing buyer” standard if the use was commercial in nature

More recent versions of orphan works legislation, that sponsored by the leadership of the House and Senate Judiciary Committees, were introduced on April 24, 2008 as H.R. 5889 and S. 2913.