Pretend for a moment you’re making a documentary film about a historic time in a particular college football program. You run across some footage of the legendary coach being interviewed, but you cannot figure out who owns the copyright to it. You’d love to use it, but some smarty-pants lawyer advises you not to lest you get sued.
This is the precise problem faced by a client of mine recently (who has given me permission to blog generally about his situation). Orphan works are items that are protected by copyright law, but where it’s difficult or impossible to figure out who currently owns the rights. (The Electronic Frontier Foundation has a short article on this topic.) I’m not sure that fair use will solve the orphan works problem, though.
Fair use is an affirmative defense to a claim of copyright infringement. In other words, unless the copyright owner agrees that fair use applies, you can present this defense only after you get sued—and incur costs in the process. Also, the rules on fair use are not bright line tests, so reasonable minds can disagree about whether something qualifies as a fair use. That’s a bit too much risk.
Still, allowing a defense of fair use in orphan works situations might help in that it would reduce the risk of getting sued for a huge amount of money. Still, I’d rather see the Congress pass some kind of “amnesty” law. The law would say copyright owners have until a certain date to “re-register” their works that haven’t been published or distributed in recent years. After the date, any works that don’t show up in the registrations are in the public domain, free for use by anyone. This idea would at least put the burden on copyright owners to say, “Yes, I still want to reserve rights in my work.” It’s not a perfect solution, but it might clear up some of the mess.
NB: Yes, I know it’s been a long time since I wrote anything here. I have no excuses, but I’ll try to do better from now on, even if it’s just short blurbs pointing you to things I’ve run across elsewhere.