Right now, filmmakers have a rare opportunity to influence the development of copyright law. Congress is looking for ways to address the problem of “orphan works:” how a copyrighted work may be used when its owner cannot be found. The U.S. Copyright Office and members of the House and Senate want to find a solution that is friendly to filmmakers and small artists. Unfortunately, groups representing photographers and textile manufacturers are trying to kill orphan works progress, which is why members of Congress need to hear from you…
Conveying your experience will help to provide crucial context to members of Congress. The scenarios are familiar: perhaps you wanted to make use of found footage, but couldn’t complete the project because you were unable to locate the owner, even though the footage was apparently abandoned. Or perhaps you had an idea for a film adaptation of an obscure book but couldn’t locate the book’s copyright holder even after an extensive search. Or perhaps you are creating a documentary (or a museum installation, or an 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.
The problem is one of liability: if you decide to use an orphan work, even after a search to find the owner there is a possibility that the copyright owner could turn up later and sue you for infringement. Insurers and distributors understand this so they require proof that the copyright owner was found and paid, and won’t accept the fact that the copyright owner probably no longer exists. The result is that most filmmakers can’t seriously consider using an orphan work since it creates open-ended liability risk.
As it stands today, the ability to tell a story to its fullest is compromised because the current law doesn’t protect filmmakers who make use of orphan works.
Fortunately, a coalition of organizations has been working on a solution to allow the use of orphan works while still protecting the copyrights on which filmmakers and other artists rely. We filed testimony in the House and Senate seeking a solution to cap a filmmaker’s damages and prevent the resurfacing orphan owner from stopping a film with an injunction, provided a reasonable search was conducted. You can read more about the details of the proposal here. Recently, Representative Lamar Smith proposed legislation,HR 5439, “The Orphan Works Act of 2006,” which would limit liability in the use of orphan works, but still requires important changes to reduce the financial risks to filmmakers. This is very exciting news! A few changes to the bill would help filmmakers, and we need a bill to be introduced in the Senate, so again, your voices are very important.
Congress has heard from us, but what’s more important is that members hear from you. Write to them now, and insist that Congress recognize filmmakers’ concerns on orphan works.
