Missing in Action: Copyright Clearance and the Orphan Works Dilemma
The “Orphan Works” Challenge
So-called “orphan works”—possibly-copyrighted works for which a copyright holder cannot be found—can be a real problem for an artist, historian, or filmmaker. You may have experienced the problem of orphan works firsthand; if not, you probably know someone who has. Perhaps you had an idea for a film adaptation of an obscure book, but could not complete the project because you were unable to locate the book’s copyright holder even after an extensive search. Or perhaps you are an experimental filmmaker who is unable to make use of found footage for the same reason, even though the footage is apparently no longer wanted by either the creators or their heirs. Or perhaps you are a creating a documentary (or a museum installation or educational video) and cannot find out if the treasure trove of old photographs you’ve discovered is even under copyright anymore, much less who the owner might be. It may be that you’ve found a rich cache of corporate ephemeral films or training manuals, but the corporation is defunct and a successor in interest is nowhere to be found. Or, perhaps you have been unable to find a distributor or insurer for your project because it incorporates elements for which you cannot obtain official clearance from unlocatable copyright holders. These are all orphan works problems.
Fortunately, the United States Copyright Office recently took note of the problem presented by orphan works and asked for input. A coalition of organizations whose work supports independent and documentary filmmakers, including NAMAC, joined with Professor Jennifer Urban of the University of Southern California Law School’s Intellectual Property Clinic to prepare comments and a proposed solution for submission to the Copyright Office.
Current copyright law makes it easy for creators to obtain automatic and long-lasting protection for their works by granting a creator copyright in a work at the moment of creation. In the past, a creator had to take affirmative steps—usually publication with a copyright notice and registration—in order to assure protection of a work. But the old formalities were abolished years ago, and today there is no requirement that a work be published with notice, that its copyright be renewed, or even that it be registered with the Copyright Office. This loosening of the rules makes it much easier for artists to gain and maintain copyrights in their works. However, an unintended consequence of the looser rules (along with recent extensions to the copyright term) is a vast landscape of orphaned works, which are covered by automatic copyright protection, but whose owners are difficult or even impossible to locate. These works continue to hold immense cultural and artistic value, but even though the original creators may have long since lost interest in them, the fear of financial liability may discourage potential users from incorporating such orphaned works into new creative endeavors.
For filmmakers, the inability to use orphan works means that the ability to tell a story to its fullest is compromised. The choice of raw material might be severely limited by liability concerns if the project requires unique, unusual, obscure, or ephemeral footage. Libraries and archives may not be able to give users access to works in their collections for which they do not have complete ownership information. It may be impossible to incorporate vital visual works, such as photographs and paintings, into a production design if the owners cannot be found. Valuable underlying works, such as books, letters, and other written material, cannot be utilized in creating a derivative work if the owner cannot be located. The inability to clear important materials for museum exhibits, documentaries, and period films could even undermine the cultural and historical record.
The Copyright Office Notice of Inquiry and the Coalition’s Response
On January 26, 2005, the Copyright Office published a Notice of Inquiry in
the Federal Register calling for “public comments”—statements of the problem and suggestions for solutions from anyone who’d like to weigh in—on the issue of orphan works. After the first round of Initial Comments was completed, the public had the opportunity to respond to others’ Initial Comments in a Reply Comment period. The response was overwhelming: over 700 Initial Comments and nearly 150 Reply Comments were submitted. For a rather technical copyright issue, this was an amazing number! While there were a few comments that expressed concern that a solution might overly burden copyright holders, the vast majority of comments recognized the problem and asked for a solution. About 70 comments both noted the problem and proposed solutions or partial solutions, including comments from various libraries, archives, filmmaker and other media groups, museums, the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA).
In addition to NAMAC, the coalition put together by Professor Urban 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 were submitted on March 25, 2005, and Reply Comments were submitted on May 9, 2005. For the Reply Comment, 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. NAMAC and the other members of the coalition thought carefully about ways to solve the orphan works problem for new users while preserving the copyright protection upon which all creators rely. We came up with a balanced proposal that asks for a strict limitation of liability for new users of an orphaned work after they have completed some important steps and if the copyright holder hasn’t taken advantage of a simple listing system.
Here’s how it works:
First, we asked for the creation of a voluntary listing system separate from the existing formal registration process, through which a creator could list works and contact information with the Copyright Office, which would be made available online; Michael Donaldson has dubbed this list the Directory of Claimants. Fewer works would be orphaned if there were a simple and inexpensive way for copyright owners to express their continued interest in the rights to the work and to disseminate their contact information. The uncomplicated, free-of-charge listing process would provide a user-friendly means for new users to locate copyright holders and negotiate licenses with them. Creators who have listed their works would, of course, be responsible for keeping the information up to date and accurate. This process, too, should be simple to do and free of charge.
New users must search the Directory of Claimants. Any work in the Directory of Claimants or registered with the Copyright Office under the present registration system is automatically non-orphaned, and the new user must negotiate with the copyright holder for a license to use the work. If, however, the copyright holder has not listed or registered the work, then the work might be orphaned. To find out, a new user would conduct a “reasonable efforts” search (like any copyright clearance search) for the owner. Because what constitutes “reasonable efforts” will vary from project to project and from medium to medium, there can be no single set of criteria applicable in all situations. However, the proposal requests that the Copyright Office provide some amount of guidance to potential users, including a standardized form outlining a list of basic measures and the ability for a potential user to post a “notice of intended use” on the Copyright Office website.
If the reasonable efforts search does not turn up the copyright holder, then the user would be able to treat the work as orphaned. The user would be required to submit the form recording her efforts to the Copyright Office. So long as the form is completed and the user has signed a statement of good faith (or similar requirement), the Copyright Office would approve the form, and the user would be free to use the work. The key to this is keeping it simple and keeping the turnaround for the form approval automatic and quick.
So the user incorporates the orphaned work into a new creation. But what if a copyright holder surfaces later? This is the risk that distributors, funders, and insurers worry about. Under our proposal, then, if the user completed the reasonable efforts process in good faith, the copyright holder could only get damages capped at a low amount (perhaps $500.00). Importantly, the copyright holder would not be permitted to stop the user from using the work, and the copyright holder could not be awarded attorney’s fees. In this way, the theoretical risk of using an orphaned work turns into a definite number (in our example, $500.00) in which new users, distributors, and insurers can take comfort.
Even though the vast majority of orphaned works are by definition unimportant to the copyright holder (if the copyright holder exists), we wanted to be sure that the rare copyright holders who turn up after a work has been designated an orphan do not lose control of their work and license revenue forever. So we proposed that works be designated “orphans” for one user and project only (for example, one film and all related material). Since copyright owners may surface after an orphan work is used publicly, or may become more accessible between searches, any subsequent users wishing to make use of the same work would have to pursue their own reasonable efforts search. This balances the needs of potential users with the ability of owners to get a “second bite at the apple” and reclaim their right to receive future financial gains from their work. As a final detail, we recommended that both published and unpublished works should be eligible for “orphan” status, as many culturally valuable works are unpublished, such as home movies, letters, diaries, and research notes.
We’re excited about this proposal. By limiting liability with a clear and strict cap on damages, new users would be able to assess the financial risks of using orphaned works in a meaningful way, rather than being discouraged from including orphaned works in their projects by fear of unlimited and unknown liability. By removing financial uncertainty from the picture, new creators would be able to make greater use of orphan works and the public would gain a broader exposure to valuable works from our cultural background.
Next Steps and What NAMAC Members Can Do
The extraordinarily large number of comments received by the Copyright Office in response to their Notice of Inquiry reveals that the issue with orphan works is a significant one that affects a broad range of parties, and emphasizes that there is a problem that should be solved. Now the Copyright Office is reviewing all the comments and working on next steps. NAMAC members will likely have a chance to be involved at multiple points in the process.
First, it is likely that the Copyright Office will hold public hearings on
the orphan works issue this summer, both in Washington, DC and Los Angeles.
We will keep you posted as this develops; the participation of NAMAC members,
by attending, submitting written comments, or perhaps even testifying, will
be invaluable. The Copyright Office will likely report its findings to the
Senate Judiciary Committee by the end of the year. As Congress considers whether
to pursue legislation (and what kind) to address the pressing problem of orphan
works, there will be opportunities to contact your congressional representatives,
work with other members of the community to build the public discussion, or
possibly even head to Washington to ask for reform in person.
> You can find all the comments submitted in response to the Notice of Inquiry on the Copyright Office website at www.copyright.gov/orphan. Our coalition’s Initial Comment is at www.copyright.gov/orphan/comments/OW0663-IndependentFilm.pdf.
The coalition Reply Comment is at www.copyright.gov/orphan/comments/reply/OWR0128-FilmInterests.pdf.
Questions? Send them to Professor Jennifer Urban of the USC IP Clinic at jurban@law.usc.edu.
CHRISTINE KAWASAKI graduated from USC Gould School of Law in May. This past spring, she and fellow student Jill Rubin worked with coalition members to draft the coalition’s Initial Comment and Reply Comment under Professor Urban’s supervision.
© 2005 National Alliance for Media Arts and Culture. All Rights Reserved.
