Michael C. Donaldson, former IDA President, is an entertainment attorney based in Los Angeles and is the author of Clearances and Copyright
You may recall that the IDA joined a number of other independent film organizations to work with the US Copyright bOffice on the knotty problem of "orphan works." Orphan works are works that you believe are protected by copyright; you may even believe that you have the name of the owner, but you can't find the owner of the work. So you are left with the uncomfortable choice of not using the material in your film or taking the risk of using the film and the owner coming forward after your film is in distribution.
Copyright owners in this situation can obtain injunctions fairly easily. That means they can stop the release of your film and it doesn't matter that you tried hard to find them before the fact. They usually have a right to statutory damages, which can run as high as $150,000. If not, they have the alternative right to damages based on a portion of your profits. What a lousy situation that is!
The Copyright Office held hearings in San Francisco--attended by myself and IDA Board member Barbara Gregson--and in Washington, DC--attended by Professor Jennifer Urban of the University of Southern California. After these hearings, the Copyright Office was convinced that orphan works present a huge problem that frustrates the purpose of the copyright law, which is to encourage creativity. Representatives from the Copyright Office heard a number of plans from a wide variety of stakeholders, including the IDA, and have just made their recommendations to Congress, which follows:
- If a filmmaker makes a substantial, reasonable effort to find a copyright owner, and is unable to find that owner, the filmmaker may use the material in question.
- If the owner emerges later, he/she will be limited to a fair market value of the item used, instead of having the advantage of receiving statutory damages or damages based on the filmmaker's profit.
- If the new use is non-commercial, the user will be allowed to take down the copyright protected portion of the new work instead of paying anything.
Professor Urban, who represents other filmmaker organizations, and I have filed a written statement with the Congressional Sub-Committee holding a hearing. We would prefer a cap to damages, but if that is not possible, our biggest concern is to refine the definition of fair market value. This proposal is a huge improvement over the present situation, because it eliminates statutory damages that can be quite high and replaces them with a market-based payment. Nevertheless, the definition of "fair" still needs some further clarification. Something like the average price paid for other similar items in the film is one approach. Let us hear your thoughts on that.
The other area that is of concern is the commercial/non-commercial distinction. We think that all filmmakers ought to be treated alike in this regard, and we will work to eliminate the distinction.
Passing legislation is always a slow process, but things are definitely moving forward on the orphan works front. Please send your thoughts and comments to mcd@donaldsonhart.com so that your advocacy team can be an effective voice for your views as this process continues.
Michael C. Donaldson, former IDA President, is an entertainment attorney based in Los Angeles and is the author of Clearances and Copyright.