Using Footage Without Permission: the Orphan Work Dilemma

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Using Footage Without Permission: the Orphan Works Dilemma

Using footage without permission is not a simple issue and can land filmmakers in very hot water.

Most documentary filmmakers want to find rare and never-before-seen footage, but things begin to get tricky when it’s time to seek permission to use it. Unless the copyright has expired and the creative work can be used freely as public domain footage, obtaining authorisation to use someone’s intellectual property is not optional. 

Now there is a term for this particular case where the rights-holder cannot be found but the footage is still protected by copyright: this is what we call an ‘orphan work.’ Encountering an orphan work causes that dilemma most documentary filmmakers face one day or another: should I persevere with using footage without permission or not? 

This is a real concern and a kind of grey area for many filmmakers. Let’s examine what an orphan work exactly is and the legislative framework around it, so you can better assess how to deal with orphan works, and how to get licensing when possible.

What is an ‘orphan work’?

An orphan work is a copyright-protected work for which one or more rights-holders (in the case of a collective work for instance) are indeterminate or cannot be located. 

Sometimes, it’s impossible to identify a right-holder of a piece of footage because the business who owned it no longer exists, or the rights-holder is deceased and has no heirs, or other reasons. 

Orphan works are everywhere, from flea markets to Youtube. A great number of presumed orphan works can also be found in archival collections since archives act as memory institutions.

According to a survey carried out in Europe in 2017 by EYE, the national film archive of the Netherlands: ‘21% of all film works held in the responding 24 film archives (who responded to the survey) may be considered orphans.’

Using footage without permission: the orphan works dilemma
The orphan works dilemma

What are the copyright and licensing issues with orphan works?

When a documentary filmmaker begins looking for archival footage they may stumble upon footage from all sorts of different online and physical sources, including found footage, amateur footage, and home-movies. 

It’s the filmmaker’s duty to make sure they can gain authorisation to use a piece of footage that is still protected by copyright, and generally speaking, there’s a compensation fee for that use.

Indeed, a copyrighted work can not be used by third-parties without the rights-holder’s consent. So what happens then when there’s no rights-holder associated with the work and you don’t know who or where to get licensing from?

Today, no technological solution exists to trace a work back to its rights-holder easily. This can lead to a very long quest in order to identify and locate the owner of the rights, especially if you lack data and info. 

If your search remains unsuccessful and you don’t want to give up on this perfect footage you find, your use of it in your documentary will be at your own risk.

Using footage without permission is not a decision to be made lightly. Basically, the risks are to be sued for copyright infringement, injunction and other damages – that could jeopardise the distribution of the documentary. 

That’s a big threat, which makes the IDA, the International Documentary Association, argue in 2012 before the United States Copyright Office and Library of Congress : « The orphan works problem remains a significant impediment to documentary and independent filmmaking today. »


Orphan works and Fair Use in the U.S.

For US-based filmmakers, there’s no such thing as orphan works exception, similar to the Fair Use exception, nor a statement of best practices to protect filmmakers, such as the fantastic Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Therefore, independent filmmakers and documentary associations such as the IDA and Film Independent in the U.S. are lobbying the government to create legislation similar to that which is applied to Fair Use for orphaned works.

The IDA have worked extensively to create clearer regulation for identifying orphan works and using footage without permission in this context. They argue that flexibility is key when it comes to legislation around orphan works, and suggest modelling orphan work legislation on Fair use guidelines:

“We have suggested in previous comments and in the Orphan Works Roundtables that Congress and the Copyright Office should approach orphan works reform with fair use in mind. As with fair use, the orphan works problem affects every part of the copyright system, from libraries and archives, to public and private news outlets, to documentary and independent film”.

See here attorney Michael Donaldson presenting the orphan works issue to Congress.


How do orphaned works licensing laws vary around the world?

Copyright laws differ greatly from one country to another, so are the rules that have been adopted across the world to permit certain uses of orphaned works.

For example, countries such as Japan and South Korea have state guidelines for using footage without permission and orphan works.

Canada has created a supplemental licensing scheme, under Section 77 of its Copyright Act, that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable rights holders, after a prospective licensor has made “reasonable efforts to locate [holders of] copyright”. We can read on Wikipedia that as of March 2019, the Board had issued 304 such licenses, and denied 24 applications.

Meanwhile UK copyright law is more broad, and cannot be applied for all orphaned works. In recent years the UK government has developed a register where filmmakers can submit orphan works and apply to use them, along with proof that due diligence searches have been fulfilled.

In most of the countries in continental Europe, the authors’ rights are maintained long after the author’s death and passed to family members.

EU has adopted the Directive 2012/28/EU that enables certain uses of orphan works. In particular, it addresses the challenges posed by orphan works where European archives are prevented from digitising their body of works and from making them accessible to the public without the rights-holder’s authorisation.

Available online, The Orphan Works Database is a great response to the orphan work issue in the EU. Here is a video explaining how it works.



Avoiding copyright infringement: 8 tips for documentary filmmakers

Deciding whether using or not using footage without permission in your documentary is not to be taken lightly. While many doc filmmakers are actively seeking orphan works because they are never-before-seen footage that can elevate their films, things need to be done properly in order to manage the risks and avoid legal actions for copyright infringement

Here are some tips to help you in your rights-clearance process:

1. Keep track of the rights-holders as you go

Use a good system like spreadsheets to keep track of crucial info during your archival research and licensing process. You don’t want to accidentally include footage from an unknown copyright holder just because you haven’t made proper note of it.

2. Allot time to find the rights-holders and get licensing when possible

Make sure you have the timeframe (and funds) to carry out a proper investigation. Obtaining authorization for the use of archival footage (or archival material) shall be a priority. Do not wait until post production to find the rights-holders, or you may find you have to discard the footage altogether.

3. Make sure the archival footage is truly an orphan work

Never assume that a video clip you found is orphaned before conducting an extensive research to locate the rights-holders.

If you’ve succeeded in locating and contacting a rights-holder but there’s no reply, that’s not an orphan work anymore; the rights-holders are not obliged to respond to your request, and it’s maybe wiser to find a footage alternative

4. Conduct a diligent search

There is no set procedure to conduct a diligent search and it all depends on the nature of the archival footage. A robust diligent search would imply checking multiple sources including professional associations, copyrights offices, obituaries and so on.

But it’s also like detective work, where you have to find clues and talk to many people, like archivists, to detect potential rights-holders. The provenance of the footage can provide crucial info too, and sometimes image recognition tools work like a charm.

5. Keep evidence of your rights-clearance process

A copyrights-owner can suddenly resurface. Being able to prove you’ve made your best efforts to find them and avoid using footage without permission is key to protecting yourself from copyright infringement. Keep track of all your correspondence and write a report so as to show your good faith.

6. Make sure you account for copyrights in your documentary budget

You must keep aside a reasonable amount of money for compensating a rights-holder who would resurface and claim licensing fees – and have proof that you have done so.

7. Hire an archive researcher

Archive researchers are like the detectives of the film world. If there is an unknown copyright holder, an archive researcher is your best bet for tracking it down. On Archive Valley, you’ll find a unique community of 500 professional archive researchers. 

8. Consult a copyright lawyer

Copyright lawyers are trained to decipher the complex laws surrounding issues such as orphan works. Make sure to consult a professional attorney specialised in intellectual property rights before deciding whether or not to use footage without permission.


Disclaimer: the information provided in this article does not, and is not intended to, constitute legal advice. You should not act upon any such information without first seeking the advice of a professional attorney.



Documentary Productions, Uncategorized

A Look at Documentary Short Films & the Opportunities Out There

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Documentary Short Films : Why they are here to stay and how you can be a part of it.

Some people might think you need a full two-hour documentary to produce an award-winning, emotionally-charged, beautiful work exploring the nuances of the Second World War and its traumas. The must-see short doc Colette (2020) would prove them wrong, winning the 2021 Academy Award for Best Documentary (Short Subject).

Directed by Anthony Giacchino and produced by Alice Doyard with The Guardian, it is only the most recent example of a new genre which continues to go from strength to strength with impactful stories that speak to the world.

The Rise of the Short Form Documentary

We often hear that we’re in the golden age of documentary filmmaking, and maybe it’s even more appropriate to say that we’re in the golden age of documentary shorts – as editor-in-chief of Matthew Carey pointed out in 2016 yet. 

In the past decade, the short-form documentary has become more and more prominent. Two concurrent trends have facilitated the rise of this format: a widening of the avenues by which audiences consume digital content online, and a narrowing of consumer attention spans.

Indeed, short docs offer a chance to reach wider and younger audiences who are used to digesting shorter social media videos, but are still keen to immerse themselves into engaging stories which stay with them for a long time. 

As the Internet has become an increasingly prominent avenue for distribution for short films, there are a raft of new opportunities for filmmakers willing to make short docs and get them produced and seen, including archive-driven short docs. 

Jean Garner, Executive Producer and mentor for Global Short Docs Forum has argued ‘because the media world is exploding in terms of platforms, short form documentary is finding its home’. With short-docs rising in prominence on Netflix, Prime, Youtube, established news media websites and tailor-made platforms like Field of Vision, there is a vibrant short-doc ecosystem out there. 

While there are limitations that come with having to concentrate narratives into minutes rather than hours, this distillation can spark creative genius. On top of that, many documentaries are ideally suited to the short form, for its quicker production timeline enabling filmmakers to match the contemporary relevance of their story and the immediacy of their access. Sometimes, it’s all about the right time. 

Whether it be hard hitting social commentary like the Academy Award-winning Period. End of Sentence (2018, dir. by Rayka Zehtabchi), or archival-heavy work such as the dreamlike A Love Song For Latasha (2019, dir. by DOC NYC Directing Award-winner Sophia Nahli Allison) or the fascinating IDA Award-winner short John Was Trying to Contact Aliens (2020, dir. by Matthew Killip) – all available on Netflix – the short documentary is here to stay as a key landmark on the media landscape.

3 must-know platforms that help documentary shorts to come to life

To help you best navigate the short-doc world and the opportunities it offers to both experienced and emerging filmmakers, we’ve selected three of the most interesting platforms available to you to fund, distribute and promote your documentary short films.

1. Short form documentaries on The Guardian

In 2016, the UK-based Guardian relaunched its Guardian Documentaries series, commissioning and curating short documentaries from around the world.

Head of Video at The Guardian, Charlie Phillips, who previously worked as deputy director at Sheffield Doc/Fest, describes their process: “we make films of 15-30 minutes – comparatively long for an online video – that take us in-depth into untold stories about real people.”

The Guardian works hands-on with filmmakers of all experience levels and backgrounds from across the world, acting as executive producers in a process which can take up to a year (with an average of 3-6 months). In terms of viewers, the documentaries released by The Guardian reach large online audiences globally, as The Guardian News & Media website network attracts 140 million monthly browsers.

For Charlie Phillips, telling impactful stories to their audience is the main priority, and takes precedence over thinking about film festivals. That said, several of their short docs have also won critical acclaim. Two of the works produced by The Guardian illustrate this brilliantly.

Firstly, there is Black Sheep (2018), directed by Ed Perkins. It is a poignant exploration of identity, racism and violence, which blurred the boundaries between documentary and fiction. Black Sheep went on to win Best Short Documentary at Sheffield Doc/Fest, and was also nominated at the 2019 Oscars.

Secondly, there is Colette (2020). While succeeding in capturing people’s hearts and minds with its unique approach bridging the past and the present, the short doc film went one step further this year as it has been declared the Oscar winner 2021 in the category Best Documentary Short Subject.

Black Sheep and Colette are just two films in a diverse range of Guardian documentaries, sharing a common interest in unique creative visions. They work with filmmakers of all experience levels and backgrounds from across the world, and could be the perfect partner for your docu-short! 

Don’t hesitate to submit your documentary short ideas to them here

2. Short documentaries on The New York Times’ Op-Docs

On the other side of the Atlantic, there is another newspaper with global reach churning-out top-quality video content – The New York Times’s Op-Docs.

Begun in 2011, Op-Docs is a series of award-winning documentary shorts made by independent filmmakers. Op-Docs former producer and curator Kathleen Lingo explains in Documentary Magazine (IDA) that their mission is “to provide a platform for voices from outside The New York Times to give their point of view on issues of the day”.

In the past decade they have helped make around 300 short, interactive and VR documentaries, with a broad range of styles and subject-matters. They help with publicity, distribution, funding and archival footage and music access. 

Each Op-Doc is generally 5-10 minutes in length, although some are noticeably longer, depicting a unique story to spark conversations across the globe. They say they consider “written pitches (…) as well as completed videos” but cannot consider film trailers or videos which have already been posted online. Short-pieces adapted from longer works in progress are also eligible.

Like The Guardian, they strongly encourage a diverse range of directors from all over the world, and they work with first-time doc-makers as well as with established contributors.

Op-Docs collaborates with festivals such as Sundance and have gone on to gain widespread critical acclaim, picking up official selections at leading film festivals, Emmy nominations, News and Documentary Emmy Awards, Peabody Awards, and Oscar nominations. As an example, the vibrant and intimate A concerto is a Conversation (2020) directed by Ben Proudfoot and Kris Bowers was nominated this year. 

Op-Docs have also gone on to form the basis for later feature films. One notable example is Time (2020) by director Garrett Bradley.

The factual film followed a prisoner’s wife fighting for the release of her husband, who Bradley met when working on her Op-Doc Alone in 2016. Time was meant to be another short film, but the last day of filming, central character Rich Fox gave Bradley an incredible archive of home video footage! The 81 minute film won the Documentary Directing Award at both the Sundance Film Festival and the IDA Documentary Awards, and it was nominated for an Academy Award for Best Documentary. Time is streaming now on Amazon Prime.

If you think Op-Docs is the right platform for your short docs, you can submit your pitches through this form or contact:

3. Documentary short films on Field of Vision

When it comes to short-documentary specialists, Field of Vision are some of the best in the game. Co-created by the Oscar-winning documentarian Laura Poitras who directed Citizenfour and Risk, they describe themselves as a ‘filmmaker-driven documentary unit that commissions, creates and supports original’ projects (shorts, features and episodes).

According to their submission guidelines, they seek to support work that ‘uses innovative and artistic ways to explore contemporary global issues through a cinematic lens’. They look for work which pushes boundaries, offers unique access or new perspectives on the world, and they support independent filmmakers who are often taking risks with their investigative and journalistic work.

Field of Vision commissions filmmakers to develop stories they have already identified, but many of the films are cold submissions. To apply, you need to fill in their online form.

Of the many notable successes that have come from Field of Vision, Do Not Split (2020, dir. by Anders Hammer) is particularly exciting. The film documents many landmark events in the Hong Kong protest movement, and it received the DOC NYC “Courage Under Fire” award. It was also an Oscar contender for Best Documentary Short Subject this year. 

Since July 2020, Field of Vision has also included IF/Then – previously a part of the Tribeca Film Institute. This is a mentorship programme for underrepresented filmmakers making world-class short docs that ‘break barriers to access’. 2021 is the inaugural year of IF/Then’s partnership with Hulu, where winners will receive mentoring and $25,000 in funding. While applications have closed for 2021, watch them carefully for future announcements! 

Pitching your short documentary ideas in 2021 and beyond

Whether it’s the funding, distribution or mentorship opportunities, that appeal to you most – you need to nail your short documentary application if you want your short documentary project to find success with some of these brilliant platforms. 

With all of them there are some core elements which they will want to see :

  • A one-page proposal : Can you articulate a compelling, timely and original story in a concise way? Did you think about the narrative arc and story structure of your documentary?
  • A rough budget: Have you carefully thought through the costs, taking time to estimate the budget needed to produce your short doc – including potential licensing fees of archival material?
  • Visual elements: How will the story translate cinematically, what is your filmmaking approach to it? Mood boards and 1-minute trailers are great tools to convey the look and feel of your short doc project.
  • Unique access: Why are you the right person to tell this factual story? Who is your main subject or character and what access do you have that others don’t to tell a great investigative or character-driven story ?

Whether you want your short doc to be led by observational material or archival footage – or a mix of both – make sure your story feels like it speaks to the present. All of the platforms above support short documentary ideas motivated by a concern for the contemporary world. 

While there are similarities between the requirements of all the nonfiction video platforms we’ve discussed, not to mention the many other fantastic opportunities out there, make sure you take the time to carefully research each one, ascertain your eligibility and dig around in their FAQ sections. 

There are other opportunities for documentary short films to pitch or submit at festivals, and we’ll make sure to talk about this in an upcoming Archive Valley‘s article focusing on documentary film festivals – so stay tuned! 

Documentary Productions, Licensing, The Right Footage

Fair Use in Documentary: Understanding the Costs

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‘Fair use’ is a term used in the media industries in many countries. However in the United States, ‘fair use’ refers to the doctrine in US copyright law allowing the use of short verbatim excerpts of copyrighted material for a range of “transformative” purposes such as criticism, news reporting, teaching, research, and even parody without permission from the copyright holder. Countries such as the UK and France have their own fair use laws with specific language and guidelines, but these are ultimately quite similar in purpose to American fair use doctrine. In countries where fair use is permitted, this legal framework can be a valuable tool for filmmakers, especially fair use in documentary. However, in some cases, claiming fair use on footage used in a project can present editorial and aesthetic constraints, as well as pose a legal and financial burden to a production.

Here are a few things to remember when considering claiming fair use of copyrighted footage in film and television productions. (more…)

Archive Researchers, Licensing, The Right Footage

Archive Valley Masterclass Series: Jessica Berman Bogdan & Cathy Carapella on Archive Research and Licensing in Music Documentaries

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In recent years, audiences have been captivated by new exciting documentary films about the lives and music of famous musicians and performers from The Beatles, The Grateful Dead and Nina Simone to Amy Winehouse and Nirvana. Jessica Berman Bogdan is a veteran archive producer and the CEO of Global Image Works, where she works together with Cathy Carapella, as music rights and clearances professional. As a team, they have worked on some amazing archival music documentaries, finding and clearing the images and music that made the films possible. 

In this episode of our series, Jessica and Cathy discuss the ins and outs of sourcing and clearing material related to the music industry for documentary film and television productions. From budgeting to understanding the multiple kinds of rights associated with music and live performance footage, they shared some key advice for producers and archive researchers looking to create lasting works about the music, it’s creators and the performers that bring it to life.

More episodes from the masterclass series to come soon! If you want to be the first to know when the next one will become available, simply sign up on the platform and get exclusive early access to all our weekly updates, interviews and videos dedicated to the world of archive research.

Documentary Festivals, Rare footage

SPOTLIGHT: 4 Archive-Driven Documentaries @ HotDocs2018

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We have prepared for you a short selection of films from this year’s edition of HotDocs that we expect to showcase some of the best work in the field of archive research in 2018. With the full line-up published, it was easy to spot the productions that rely on the meticulous research of both personal and external archive sources. Some of the productions will have their World/North American premieres making the festival a truly special moment for the filmmakers and researchers behind them. The selected films come from very different places, periods, each with a unique personal narrative making a great complete watching experience if you want to see all of them (something that we definitely will).