Melise Blakeslee of McDermott Will & Emery has a good overview at law.com of the status of the Orphan Works Act, which was introduced into the House in May but will have to be re-introduced when Congress reconvenes after elections in January.
She gives a good working definition of an "orphaned work" -- one where "the copyright owner cannot be found after a diligent search" -- and points out how risky it can be under current law to use one:
"[D]amages can be significant. Should the previously unknown copyright owner appear and make a claim, the Copyright Act provides for an award of actual damages, and may, under certain circumstances and the court's discretion, provide for statutory damages of up to $150,000 per infringing work, along with an award of attorney fees."
The proposed law "would lessen the monetary penalties facing a good-faith user should the copyright owner eventually appear and make a claim. To qualify for reduced penalties, the good-faith user must prove that it made a reasonably diligent effort to locate the copyright owner prior to the allegedly infringing use. ... Once it is established that a diligent search was conducted, the penalty is limited to a reasonable royalty fee."
Something to keep an eye on next year.