Boy, I didn't think this was all that new or controversial.
And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.
Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill
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First up, the orphaned work law, as I understand it, is not that controversial, nor do I think the loopholes are all that big. The thing that's important is it's not just about the amount of effort that was put into finding the author, it's the very provable fact of whether the author could realistically be found by ANYONE. If it is possible, the work is not orphaned.
Let's say I post a photo on my website, someone else rips it and posts it on another site called "Pretty Photos" without attributing it to me. Then, WalMart finds my picture and uses it in their ad. Walmart doesn't have a valid claim that it doesn't know who the photo belongs to, just because they don't know my name. WalMart knows it got the photo from "Pretty Photos" and it should have received permission from "Pretty Photos." Pretty Photos is in violation of copyright in the first place for posting my photo without getting my permission, and it has no authority to grant permission to WalMart. If it did, it could even be considered fraud on behalf of Pretty Photos.
Now, let's say my photo went viral on the Internet and nobody knows where it came from. IT DOESN'T MATTER. If I have proof that it is, in fact, my photo, then EVERY website that posts my photo without getting my permission is in violation of my copyright. Just because nobody knows where it comes from doesn't mean they are off the hook....it just means they are lazy. There is still a trail back to me. It is the existence of the trail, not the effort that is made, which counts. So long as one person got the image from someone else, there is a trail. So, nobody can legitimately state that the work is orphaned, especially if I personally contact people that are trying to use my work.
If you are that concerned about people stealing your copyrighted materials, you should also take it upon yourself to register your work or create some kind of proof, as that kind of IP theft is possible regardless of any orphaned work law. I'd say that if you want to post share something with the world, and you don't want it to get out of hand, make sure your name is on it and that there are plenty of witnesses who know where the work came from, so confusion can be avoided. By now, any intelligent artist should be keenly aware of the fact that piracy is standard operating procedure for the Internet.
By the way, if WalMart was stupid enough to use a superhero that someone else created, without doing any due diligence, the orphaned work law would not hold up as a reasonable excuse, and you would likely win an amount equal to damages you suffered. Although, personally, I think I would owe WalMart for getting my character more exposure than I could ever give him.
There are legitimate cases of orphaned works and I support giving people access to them. It is ridiculous for useful works to rot in limbo because there is no known author, or because a company went out of business without transferring rights.
You make it sound like people who are using PD works, or orphaned works are stealing from someone. It's not stealing if nobody owns the thing you are using. In fact, using forgotten works should be considered an homage. If I found a rusty old bike, laying in the garbage, is it really wrong to dig it out and take a ride? Sure, someone made the bike, and someone used to own it. But those people are done with it, and it's just going to rot in a landfill, so why shouldn't I recycle it? Why shouldn't I take it to the park, for all the kids to ride? Is it really necessary for me to go buy a shiny new one, if I can polish up the old one and take care of it? Believe me, if someone was still using my characters after I was dead, I'd consider it an honor.