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.’
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.