In October of 2012, the U.S. Copyright Office issued a Notice of Inquiry regarding Orphan Works and Mass Digitization. In response to this inquiry, the USC Intellectual Property and Technology Clinic filed a comment on behalf of the International Documentary Association, Kartemquin Educational Films, and the Independent Filmmaker Project, along with other organizations and individuals in the independent and documentary filmmaking industry.
An orphan work is a work protected by copyright for which the rightsholder cannot be identified or located. When filmmakers wish to license this material to use in their films, they will be unable to contact the rightsholder to obtain permission. Without authorization from the rightsholder, filmmakers are deterred from using such materials because there is a risk that the rightsholder will resurface once use has commenced and may take legal action against the filmmaker for copyright infringement.
The comment articulates the need for orphan works reform to allow independent and documentary filmmakers to draw upon the rich cultural and historical content that is becoming more readily accessible due in part to the growing ubiquity of digital technologies. We urge the Copyright Office to explore solutions to the orphan works problem that will enable filmmakers to make responsible and valuable uses of orphan works.
The comment can be downloaded at http://mylaw2.usc.edu/users/jlerner/orphan_works_comment.pdf