Orphan Works Legislation

The Independent Feature Project (IFP) and the National Alliance for Media Arts and Culture (NAMAC), representing filmmakers and filmmaker organizations throughout the United States, welcomed the Orphan Works legislation introduced in the US Congress yesterday. The legislation — known as S. 2913, the Shawn Bentley Orphan Works Act of 2008, and H.R. 5889, The Orphan Works Act of 2008 — will allow filmmakers, distributors, and "other creators" to make use of "orphan works" that have been lying in vaults because the copyright owner no longer exists or cannot be found.

As per the IFP press release, "the House of Representatives and Senate proposed separate bills with similar frameworks that will allow the use of orphan works, while balancing the interests of copyright holders, by limiting the judicial remedies in copyright infringement cases involving orphan works.

"Currently, filmmakers who encounter orphaned works cannot find an owner to license from and are thus constrained from using such works for fear of an injunction against the film or retroactive, exorbitant fees. Even if the filmmaker is ready to take the risk, distributors and insurers may not be. In rare cases, the owner may exist somewhere, but most of the time, the owner is long gone — yet the work cannot be used and the filmmaker's vision is stymied.

"Orphan works reform will solve this difficult problem by ensuring that filmmakers are not crippled by the inability to find absentee copyright owners. Under the House and Senate bills, a filmmaker or other user is required to diligently search for the owner of a work. If no owner is found, the orphaned material may be used. In the rare case that the unlocatable copyright owner shows up later, damages are limited to a reasonable license fee, calculated to reflect what a user would have paid had the owner been found in the user's original search. By eliminating the risk of excessive damages and catastrophic injunctions, this bill would make it much easier for filmmakers, distributors and insurers to move forward and use orphaned works, while surfacing owners would receive reasonable compensation for their work.