Talking "E/O" at the Capitol

Have you ever wanted to use a photo, some footage, or a poster while working on a documentary project, and found that you weren’t clear about who owns the copyright? Maybe you did your research and discovered that the poster is from 1958 and the printer is out of business. That makes the poster an “orphan work.” What do you do? As the law now stands, you are better off avoiding using a potentially risky element than facing the peril of not getting “Errors & Omissions” (E/O) insurance. Thus you must leave it out of your project. Without E/O insurance your rising star doesn’t stand a chance of distribution.

As legislation goes, copyright law may not be sexy, but it is serious and it does impact all of us working in motion-image media. As an independent filmmaker, executive director of MTN, the community television center in Minneapolis, and president of the NAMAC board, I have an interest in orphan works legislation. Thus, I took a trip to Washington, DC—a town that I often feel alienated from, marked as it is, in my opinion, by power and corruption. On this particular mission, however, I was newly educated and impressed by the integrity of the people I met.

I joined a team of independent filmmakers and film industry professionals, spending a day wearing a suit and meeting with those who represent us in Washington. Three of us were documentary filmmakers. Our group also included an entertainment attorney, an insurance broker, and, Sandra J. Ruch, the executive director of the International Documentary Association.

Our goal was to visit with the folks in twelve congressional offices, but first we needed to be further educated about the orphan works legislation. The afternoon before our trip to Capitol Hill, we met at the offices of Public Knowledge, which, as stated on their website (publicknowledge.org), “is a Washington DC-based advocacy group working to defend your rights in the emerging digital culture.” Here we gathered to learn about each other and to plot our mission. We met with Public Knowledge president Gigi Sohn, a veteran of Beltway politics, and consultant Kim Bayliss from Dutko Worldwide. Public Knowledge, along with Jennifer Urban, law professor at the University of Southern California, has taken on the orphan works issue. Professor Urban pulled together a coalition of organizations that included the Association of Independent Video and Filmmakers (AIVF), Film Arts Foundation, Independent Feature Project/New York (IFP/NY), and National Video Resources (NVR). Initial Comments from our coalition were submitted to the copyright office on March 25, 2005, and Reply Comments were submitted on May 9, 2005. For the Reply Comments, our coalition was joined by Doculink, FIND (Film Independent), and the International Documentary Association, all represented by Michael Donaldson of Donaldson and Hart in Los Angeles. We were privileged to have Michael with us in Washington.

Orphan works are, broadly speaking, any copyrighted works for which the rights holder is hard to find. In many cases these works were abandoned because they no longer produced any income. Because the cost of finding the owner of an orphan work is so high, creators cannot include orphan works even when they would be willing to pay to use them.

This is what we learned at our meeting at Public Knowledge:

• The orphan works problem is real.
• The orphan works problem is elusive to quantify and describe comprehensively.
• Some orphan-works situations may be addressed by existing copyright law, but many are not.
• Legislation is necessary to provide a meaningful solution to the orphan works problem as we know it today.

I have experienced the orphan works problem firsthand, most recently around the use of old photographs while producing the documentary Wellstone!, which tells the life story of our late, great Senator from Minnesota, Paul Wellstone. Wellstone went to Washington as an outsider and learned to play the game in order to do good work. It was in his spirit that I entered our country’s Capitol.

I quickly learned that the issue is refreshingly nonpartisan. Even in its current draft form, the orphan works legislation is an improvement over standing law. However, our group was interested in a few tweaks that would especially benefit independent filmmakers working with small budgets: monetary caps on liability for orphan works, and similar treatment in liability issues for individuals and small companies, as compared to what large nonprofits would receive in proposed legislation.

One member of our group, Winnie Wong, was an insurance broker with DeWitt Stern in Los Angeles, specializing in E/O insurance. Independent filmmakers are not her bread-and-butter clients, but she cares about how copyright law impacts us. Winnie spoke of the insurance form that she must use, on which filmmakers must check off whether or not they have copyright clearances on all material. This is a yes/no answer, she explained, and often is the determining factor for whether or not insurance will be issued. If the orphan works legislation is passed, insurance companies will have an easier time taking on copyright risk and granting small filmmakers insurance because ceiling caps for liability could be factored in. Thus, if the owner of the "orphan work" shows up at a later date, he or she can not demand an unreasonable amount of compensation. By having Winnie with us, representing the insurance viewpoint in our meetings with congresspersons and staff, we were better able to explain our concerns.

Congressman Howard L. Berman, a Democrat from California who sits on the House Judiciary Counsel, is a key person drafting this legislation. We met with his staff person, Shanna Winters, in the congressional cafeteria, where we discussed the bill’s language in depth. Winters had recently spoken with folks representing photographers, who had expressed their concern that instituting a cap on orphan works would prevent them from receiving proper compensation for their work. Their concerns conflicted with our desire to protect independent filmmakers by putting a cap on liability for these works. We all agreed to explore further options. One specific solution discussed was an internet-accessible database where photographers could register and upload images of their work.

This could serve as an easily-accessed location for independent filmmakers searching for a copyright holder. This issue came up again later in the day when we met with Dave Jones, a senior staff member for Republican Senator Orin G. Hatch of Utah. We discussed further database options and potential funding strategies, such as a government grant to be matched by foundation dollars.

Most of our visits were of more of an educational or “heads up” nature. I especially enjoyed our visit with Democratic congresswoman Linda Sanchez of California. She met us in her reception area enquiring if any of us had a dog allergy. After we agreed that a dog at the meeting was fine, we were led into her very bright office, which had colorful paintings on the walls. On her large leather couch was her basset hound, Chabo. With her faithful canine snoozing next to her, Congresswoman Sanchez listened carefully to our presentation.

Next, because I live in his district, I was able to personally meet with my congressman, Martin Olav Sabo, a Democrat from Minnesota. (As a constituent, you really can get an appointment with your congressperson.) Mr. Sabo candidly told me that he would be comfortable with whatever legislation Howard Berman drafts. So that is one way of the Beltway: old alliances influencing votes preparing to be cast.

It will now be up to our allies, Gigi Sohn and her staff at Public Knowledge and Jennifer Urban and her students at the University of Southern California Intellectual Property Clinic, to track this legislation and keep the rest of us appraised. As I write this, legislation is moving forward and could be passed this year. Websites to watch on this issue are NAMAC and Public Knowledge.

At the end of the day we regrouped for pictures and final hugs before we went our separate ways. I was genuinely impressed and awed by all the hardworking people that I met on this trip. This type of coalition work is a powerful reason to support NAMAC. For me, it is in this type of collective effort that we are most effective. The corporate world has no shortage of lobbyists, and those who walk the halls of power in Washington can smell a corporate lobbyist a mile away. Fresh faces representing real people do make an impact. On this trip I felt very privileged to represent the membership of NAMAC; I also felt a strong alliance with the good folks at the Independent Documentary Association, based in Los Angeles. Together we are stronger.

PAM COLBY is the current president of the board of NAMAC, the executive director of MTN Community Television in Minneapolis, and the producer of Wellstone!, the story of Minnesota’s late Senator Paul Wellstone.

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