USC Law students file comment on behalf of independent filmmaker coalitions

(Submitted by the USC Intellectual Property and Technology Law Clinic)

USC Intellectual Property and Technology Law Clinic students Christine Kawasaki and Jill Rubin on March 25 filed a response to a Copyright Office Notice of Inquiry on Orphan Works. An orphan work is a work potentially protected by copyright but whose owner is extremely difficult or impossible to find despite a new user’s best search efforts. Orphan works have become more and more common, as copyright has become automatic (you don’t need to register a copyright, put a notice on the work, or even include your name) and as copyright terms have become longer and longer (now life plus 70 years for individuals).

Over time, corporations go out of business, and individual copyright holders die, disappear or lose interest in the work all together. For Kawasaki’s and Rubin’s clients — a coalition of organizations that support independent filmmakers — this means that filmmakers can’t clear the rights to use works that would be creatively valuable, either as source material for future works or as pieces to be incorporated into new films. Filmmakers, fearing litigation from surfacing copyright owners, are often forced to choose less meaningful materials for their works, even though it is often likely that the original owner does not exist or does not care. Some projects, such as historical documentaries that rely on obscure works, cannot be made at all.

Kawasaki and Rubin worked with their clients to craft a proposal for submission to the Copyright Office that encourages greater use of orphan works while still protecting the rights of copyright holders. For example, even if one filmmaker is allowed to use an orphaned work under the proposal, the next person to use it will have to go through the same process — this way, the copyright holder has a chance to turn up and claim the work later.

USC’s Intellectual Property and Technology Law Clinic coordinated with other public interest groups to better understand the scope of the problem and how it affects other entities such as libraries, archives and individual artists. During the reply period, the students will review all the publicly posted comments and submit responses to the Copyright Office. As this issue develops, the clinic will remain active in advocating for legislation that will promote the use and preservation of these culturally valuable orphan works and prevent them from languishing in obscurity.