If you have ever used a clip or a photo or an existing piece of music in your documentary, you must have spent more than a little time looking for the owner to obtain the proper permission to use the item in your film. You might have spent a lot of time. You might not have found the owner. When the owner can't be found, after you've made a reasonable effort to do so, the item in question is called an "orphan work."
IDA is helping to solve this problem and we believe that help is on the way. Congress has been aware of the problem for some time. It was mentioned when the Copyright Act was overhauled in 1978 and was mentioned again in 1998, when the additional 20 years were tacked onto the Copyright Act. This year, Congress is considering a solution for the problem as far as libraries and archives are concerned. In fact, the legislation will probably have passed by the time you read this. Interest in a broader solution is now at a peak. The Copyright Office has an interest in determining the scope of the problem for other users such as documentary filmmakers, and has asked for proposals.
IDA proposes a system that is user-friendly, ultimately self-supporting, and considerate of the rights of both the owners of copyright and domestic and international copyright law. It reduces the number of orphan works right from the start by supplying a directory of claimants to provide a simple way of avoiding being declared an orphan work. This directory will also serve as a wonderful tool for those seeking permission. The IDA proposal also provides that when reasonable efforts do not turn up the copyright holder, the work in question will receive an orphan works designation and a compulsory license for orphan works will be issued to anyone wanting to make use of the work as long as it remains orphaned. This insulates the user from litigation.
Other organizations have proposed solutions that do not provide a compulsory license but do provide for strong defense and reduced damages. Some organizations have provided for complete exemptions to the copyright act if the owner cannot be found. The concept of an "orphanage" where such works are listed is a common feature of many of the proposals.
Directory of Claimants
At the present time, there is no place to go to obtain current contact information for entities claiming ownership of the copyright or some interest in it. Each filmmaker must start the search anew. There are professional searchers who build up some contact information, which makes their job somewhat easier if a future client asks them to find that particular claimant in the future, but that is haphazard at best.
IDA proposes that the Copyright Office immediately establish a directory of claimants as a service to the creative community. The listings would be simple, free and voluntary and would include the names and addresses of the claimants and the works in which they are claiming an interest. The listings would also specify the rights they are claiming, as various aspects of the copyright are often held by different claimants. The directory of claimants would be like a phone book--accessible by the name of the work, the name of the author of the work and the registration number. Creation of the directory would not require legislative action. Any work that is accurately listed on such a directory could not be considered an orphan work, because the identity of the claimant would be readily available.
The Copyright Office would advertise this directory to all organizations representing the owners of copyright. It would also be advertised throughout the intellectual property community, to institutions such as libraries, archives and museums and to the general public. Submission of false information for listing in the directory would carry penalties similar to the penalty of submitting false information to any other government entity; presumably, it would be a crime. If the Copyright Office does not desire to create and maintain the directory or feels that it does not have the resources to do so, it could designate a private organization to perform this function.
Reasonable Efforts
Each documentary filmmaker is a potential licensor and licensee of footage from another filmmaker for use in a project. It is essential that the requisite reasonable efforts be perceived as fair for both sides of the equation.
The existence of a directory of claimants, as described above, is a big first step in the direction of mutual fairness. If claimants are listed in the directory, the work for which they are the claimant cannot be an orphan work by definition. Beyond that, reasonable efforts would include such activities as checking other copyright records and attempting to locate the claimant through telephone directories, both online and traditional, and, for corporate entities, the appropriate state authorities--such as the secretary of state in California. Guidelines should be issued listing these steps with a great deal of specificity. Such guidelines would amount to a clear "how-to" guide to finding people and would not change much for the different kinds of works, but each kind of work has its unique sources of information that should be checked by someone making a serious effort to find the claimant.
The guidelines for reasonable efforts will evolve from year-to-year. The development of various online search tools has changed the ease and speed with which people can be located, and will continue to change. Therefore a tool that can be easily updated as practices in the field change would seem optimal. This would suggest something other than a legislative solution.
Requesting Orphan Work Designation
Once a filmmaker has made reasonable efforts to find the claimant of copyright in a work, that individual would fill out a simple, pre-printed affidavit verifying the steps that have been taken, and requesting that the work in question be designated an orphan work. Assuming that the affidavit is complete and signed and establishes that a reasonable effort has been made, the work would be designated as an orphan work.
If the guidelines are sufficiently detailed, it would be a fast and simple process to approve the request. Since permissions for use are often obtained near the end of the filmmaking process, it is essential that this step not be unduly time-consuming.
Once a work is designated an orphan work, it can be licensed under a compulsory license by the applicant and anyone else who wants to license it. It would also be put on a list of orphan works maintained by the Copyright Office. If a work is on that list, subsequent applicants will not have to repeat the drudgery of searching for a claimant. They would merely send in a relatively small, compulsory license fee with a simple form setting forth the use they are making of the protected work, and they can use the orphan work without fear of being sued.
The compulsory license fee would be paid into a trust fund, where it would remain for a period of time--say three years. If the owner comes forward and establishes his or her rightful position as the claimant, that person would be paid the compulsory license fee--and, presumably, would also be immediately listed in the directory of claimants and back in control of the licensing process. If no one comes forward during the three-year period, the money would be transferred over to the general operating account of the Copyright Office, so that the system would eventually become supported by user fees. These fees would supply some or all of the money necessary to sustain the system of orphan works.
Michael C. Donaldson is an attorney representing many documentary filmmakers. He is the immediate past president of IDA and chairman of IDA's Clearance and Copyright Committee. He wrote Clearance and Copyright: Everything the Independent Filmmaker Needs to Know, which is used in over 30 film schools in the US.