Filmmaker Tells Senate How Orphan Works Issues Hinder CreativityApril 6, 2006
For Immediate Release
Uncertainties surrounding the use of orphan works are hurting the ability of filmmakers to tell their stories, Columbia University Journalism Professor June Cross told a Senate subcommittee this afternoon.
Cross, who makes documentary films, testified before the Intellectual Property Subcommittee on the topic of orphan works — those works for which the owner of the copyright can't be found. She testified on behalf of a variety of independent and documentary film and independent media organizations, including: Association of Independent Video and Filmmakers; Doculink; Film Arts Foundation; FIND (Film Independent); International Documentary Association; IFP (Independent Feature Project); National Alliance for Media Arts and Culture; National Video Resources; and Public Knowledge.
Cross shared with the Subcommittee all the steps she had to go through to make her documentary, “Secret Daughter,” the story of her own biracial family while giving a sense of New York in the early 1950s. Cross detailed all the steps she went through to find who took some home movies on 125th St. in June, 1954.
Cross told the Subcommittee she would have had to provide to a commercial TV station evidence of her searches for the person who shot the footage, including records of searches through databases, discussions with archivists, talks with people who might have been on the street that day in 1954, documenting every email, phone call or letter.
Even with all that effort, however, Cross said she would still have to protect the commercial outlet or distributor of her films, through a type of insurance known as Errors and Omissions. Cross said: “Within the last few years, risk aversion among the insurance companies that offer E&O has reached the point that, if I can't prove that I know who the registered copyright holder is and that I have obtained written permission, I cannot obtain E&O insurance -No matter how much due diligence I perform. The fear is that the rightful owner could bring a lawsuit for untold millions and ruin us all.”
Cross told the panel: “Ironically, at a time when more and more information is available through more means than we can count, filmmakers find it harder and harder to put a sense of history and context into their work.”
In a written statement to the Subcommittee in March, the groups Cross represents recommended that there be a clear statutory cap on damages that would be paid if the author of an orphaned work should reappear, which would pave the way to certainty for all parties. The U.S. Copyright Office had recommended a scheme based on “reasonable compensation,” which Cross and others found too vague and not likely to solve the problems plaguing filmmakers.