On Monday, February 4, 2013, IDA filed comments with the United States Copyright Office regarding orphan works, or materials for which the original copyright owner cannot be contacted. These comments, which the USC Intellectual Property and Technology Law Clinic and attorney Michael C. Donaldson submitted on behalf of the IDA, Film Independent, the Independent Filmmaker Project, Kartemquin Educational Films, Inc., and the National Alliance for Media Arts and Culture, will hopefully help urge the Copyright Office and Congress to take the right approach when ruling on orphan works.
Orphan works are copyrighted works—think old books and films—for which the rightholder cannot be found. As copyright law currently stands, the risk of using an orphan work is just too high for documentary filmmakers. While many uses of orphan works are likely protected by fair use, documentary filmmakers often seek to use third party materials in ways that are not fair use. As the comments state:
"Filmmakers must license third party materials in many such instances, but are unable to do so when the rightsholder to those materials cannot be identified or located. In many cases, filmmakers cannot even begin their projects; in more cases, the projects cannot be as rich as they should be; valuable information may have to be omitted; and important illustrative content cannot be used."
This problem is one of the biggest in copyright today, and is hugely important to the craft of documentary filmmaking. In 2008, Congress came close to passing a bill that would largely correct this problem, but the legislation was put on hold. The IDA has supported this bill from the get-go, with entertainment attorney Michael Donaldson of Donaldson + Callif working extremely hard on its language before the bill was paused. Donaldson and IDA Board Member and Director of the USC Intellectual Property and Technology Law Clinic Jack Lerner, together with USC IP & Tech Clinic interns Minku Kang and Chris Mastick, have worked hard to prepare a comment that updates the Copyright Office as to how things have changed since 2008. These comments also call for a renewal of the 2008 Senate bill.
The orphan works process is sure to be a long haul, but IDA will continue to work hard to ensure that the voices of documentary filmmakers will be heard—and to do that we will need your support with letters, phone calls, and other forms of help. Stay tuned, more to come!