NAMAC Update on Orphan Works Legislation
If you’ve been following this issue, then this article will serve as a review of the orphan works problem and an update on the progress toward solving it. And if this is all new to you, then we hope this serves as a good introduction to a problem that desperately needs solving.
From a historical perspective, these orphan works are an unfortunate downside of the 1976 Copyright Act, which finalized and codified several important changes to United States copyright law. First, registering a copyright with the Copyright Office is no longer necessary for copyright protection (though it still is necessary if an owner wishes to file an infringement suit). Second, the Act ended the “notice” requirement: copyrighted works no longer have to include the “©” sign and identifying information to be protected. These two changes mean that essentially every creative work “fixed in a tangible medium,” from a Britney Spears single to your daughter’s spaghetti-art, is copyrighted, and thus subject to United States copyright law’s protections and legal remedies.
These changes were beneficial to artists in many ways, as they simplified copyright protection. However, they also harm artists by exacerbating the orphan works problem: now that no one is required to tell the Copyright Office what they own, and no one is required to mark a work with her name or a copyright notice, a follow-on user can easily be left with nowhere to turn when she needs to use a work with outdated, inaccurate, or simply nonexistent copyright information. Because possible copyright remedies for orphan works include court orders to stop showing, to stop distributing, and even to destroy copies of the follow-on work, the artist is stuck. Even if she is willing to take the risk of the copyright owner showing up after she uses the work, employers, distributors, and insurers may refuse to handle her work due to the strong remedies that might be ordered against the film. This is even more frustrating, given that the original owner may not even exist anymore, and often will not appear to claim infringement. And in cases where there is an owner, she may not mind the renewed distribution of her work.
Artists run into the orphan works problem quite often, so NAMAC has been at the forefront of orphan works reform. Since the beginning of reform efforts over two years ago, NAMAC has been working with a coalition of artist and filmmaker groups—including the Film Arts Foundation, the Independent Feature Project (IFP), and ReNew Media (formerly National Video Resources)—to advocate practical and meaningful reform. In addition, we’ve recently been working with Public Knowledge, Film Independent, the International Documentary Association, and Doculink on the reform effort.
This process of comments, roundtables, reports, and testimony has led to proposals – which we hope will lead to legislation – that balance the artist’s need for effective copyright protection with orphan works relief that will allow her to reuse works where the copyright owner is untraceable. The present leading proposal, as advocated by the Copyright Office, has three basic steps:
1. First, any artist, author, or other interested party wishing to make use of an ostensible orphan work must conduct a good faith “reasonably diligent search” for the copyright owner. Depending on the situation, this search could include running advertisements, doing an internet search for the owner, calling up ASCAP or the Authors Registry, calling up estate lawyers—whatever is reasonably diligent under the circumstances. If the search turns up nothing, the work is considered “orphaned.”2. Second, when the artist uses the work, she must give “reasonable attribution.” This requires users to provide as much information as reasonably possible to aid in the future discovery of the proper owner of the work. In a case where the owner can be identified but not found, this should be relatively simple: the owner’s identity along with some other basic information (such as year of production and location found) should satisfy the requirement. In cases where the owner cannot be identified, including known information about the work would suffice (for example, where the work was found, or an approximate date). This way new users aren’t taking credit for others’ work, future users have a jumping-off point to begin a renewed search for the proper owner, and, in the rare case that an owner exists but has not been found, orphan work owners may be alerted that their works are being used.
3. Third, any artist who completes Steps 1 and 2 is shielded from the most worrisome liability he faces: what happens if the orphan work owner turns up after the artist has made a follow-on use. The potential for strong demands by the owner—high post-hoc license fees, injunctions to stop distributing the new work, or even court-ordered destruction of the new materials—is the fear that keeps artists from breathing new life into orphaned works by using them in new, creative ways. Consequently, this is the key legislative reform: if the new user conducted a “reasonably diligent search” under Step 1 and gave attribution under Step 2, then 1) the orphan work owner’s remedies are limited to “reasonable compensation;” and 2) court orders preventing the new work’s distribution or destruction are eliminated.
“Reasonable compensation” may sound a bit fuzzy, but the proposal defines it carefully to mean compensation that is no more than the market rate of payment for the use of an equivalent work at the time the new user actually used the orphan work. In other words, a surfacing copyright holder cannot target a successful piece of art and use the threat of a court order to demand far higher compensation than she could have gotten back when the art was being created and the owner could not be found. So long as the orphan work user followed Steps 1 and 2, then a work an artist has poured her heart and soul into cannot be pulled from the shelves, taken down from the Internet, or otherwise locked away; plus, she won’t be forced to make unreasonable concessions to rights holders who demand compensation far in excess of the fair value of the disputed work.
So what does all this mean for you, as a documentary filmmaker or independent artist? Well, for now, all of this proposed legislation is just that, proposed. After almost three years of work done by NAMAC and the coalition members and our legal counsel (students at USC and Stanford legal clinics, under the supervision of Professor Jennifer Urban), orphan works legislation is under consideration by Congress, and we hope legislation will be introduced soon. This issue may be technical, but it is an important one with substantial benefits, both for copyright owners and potential users. And, when the legislation finally does arise, we hope that you will be well-informed and ready to take action.
DAVID SCHWARTZ AND DAVID LYDON are associated with the Cyberlaw Clinic of the Mills Legal Clinic at Stanford Law School.
