Orphan Works Myths

For the past two years, several media organizations have been working on potential orphan works reform, and Congress is finally poised to take some action. What the heck is that, you ask? Filmmakers often encounter orphan works when they are making a documentary and need to use a clip for which they can't find the right's holder. Often, this person doesn't exist - maybe they died and the estate doesn't care about the work, or maybe they didn't register the work -there could be many reasons. As a filmmaker, you have no way to use this clip, no matter how important it is, because since you can't find the owner, you can't get permission and no one will insure the film or distribute it because the owner might surface and say - "hey bud, your film is famous now and you owe me a million bucks." Odds are likely that if you are a reasonable filmmaker and have done your research this won't happen, because you being a rights-holder yourself, you've looked far and wide and the person just doesn't exist.

Several groups have worked with the Copyright Office and proposed that if you do a reasonably diligent search, you should be able to use the clip - or any other orphan for that matter (writing, etc) - and if someone does show up and claim rightful ownership, the damages due to them should be limited - because you essentially exhausted all efforts. Congress seems to agree, and there is now legislation being considered which could remedy this situation. It would keep a balance of allowing use while protecting the rights of the creator. You can read all about it on Public Knowledge's excellent Orphan Works site.

Unfortunately, there's some folks out there who seem to be misunderstanding this whole legislation, and there's a lot of confusion about the effect of orphan works reform. Luckily, Alex Curtis of Public Knowledge (getting the sense this group is smart? You're correct) has posted a response to the myths out there. Read it on their blog or pasted below. Soon, several groups will be sending out info on how you can get involved, and when they do, I'll post the info here.

MYTHS AND FACTS ABOUT ORPHAN WORKS LEGISLATION – H.R. 5889 AND S. 2913

MYTH: The bills would take away copyright protection from every work a visual artist ever created!

FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.

MYTH: The bills would mandate registration of all visual arts in expensive, private registries.

FACT: Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.

MYTH: Unavailability of statutory damages means that owners cannot get compensated.

FACT: Both bills would require a user to pay a reasonable compensation to an emerging owner. This compensation is defined as the amount the parties would have agreed upon had they negotiated a license before the use began. If a user refuses to negotiate with the emerging owner in good faith or pay the compensation within a reasonable time, both bills currently provide that the user would be liable for all the remedies currently available under copyright law including statutory damages, which could be as high as $150,000 per work. Statutory damages of this sort are really punitive damages, and since owners will be reasonably compensated to be “made whole,” user communities have proposed limiting damages to at most paying the owner's attorneys fees. A user’s desire to avoid having to go to court and pay double attorneys fees (his own and the owner’s) would provide a good incentive to any user to negotiate an appropriate license. Thus, the bills would provide a fail-safe means of ensuring that owners get compensated.

MYTH: The bills would institute registration formalities in contravention to international treaty obligations.

The bills impose no new registration requirements on owners.. While existing law does not require owners to register their works to claim copyright, it does obligate owners to register their works prior to infringement in order to receive statutory damages. The orphan works bills do not mandate any additional registrations beyond current law, neither to the Copyright Office nor to registries certified by the Copyright Office. To qualify for protection under the bills, a user may have to search both of these sources for the information about the owner. However, a user's obligation to search these resources does not create any requirement on owners to register their work.

MYTH: Any user could fake a “diligent search” and use the orphan works limitation to infringe. Couldn’t a bad actor falsify the records of their search?

FACT: Orphan works legislation does not make an owner more vulnerable to bad actors, nor will it make infringement any easier for bad actors. A user must undertake a diligent effort to find an owner, and that effort must be documented. A user that fakes a diligent effort would be considered a bad faith user, and would be on the hook for the full panoply of remedies under copyright law. If a user is going to claim this orphan works limitation, he’s going to have to plead it up front in court, and again up front in the discovery process, and he must produce the documentation of the search. This prevents him from hiding information or prolonging discovery. Also, the “pleading with particularity” requirement means that the infringer’s lawyer must sign his name to the fraudulent conduct. Even in worst case scenario, where a court does not find fraud, the owner still recovers reasonable compensation. The fact that the infringer must pay reasonable compensation makes fraud extremely unlikely. Why perjure yourself in federal court about conducting a search, when you’ll still be required to pay compensation. If you’re going to lie, you’re best off claiming that you never copied the owner’s work in the first place, and any similarities between your work and his are coincidental.

Sound Unbound

DJ Spooky has a new book out. It's called Sound Unbound and it's about the art of the remix in music, film and the arts. The book has a great companion CD featuring such legends as Sonic Youth and Nam Jun Paik. He'll be discussing the book at a reading this Friday at McNally Robinson in SoHo, NYC.
In addition, we have him on a panel at Tribeca the day before - Reuse, Remix and Renew - the Renew in that title reflecting the fact that for the past two years, Renew Media (the org I've been running prior to our combination with TFI) has been working on a sampling license toolkit for filmmakers. Paul (DJ Spooky) will be speaking with representatives from the USC Law School IP Clinic who helped build the toolkit, Creative Commons who is collaborating on it and Tiffany Schlain, a filmmaker well versed in new ways of taking works out digitally. The toolkit is designed to help people use a CC sampling license for their films. Come find out why you should consider it.

Shoe Leather Launches

Over at my day job, we’ve launched a new blog called Shoe Leather, by Teri Tynes, that’s part of a new, bigger project called Reframe. While Reframe doesn’t launch to the public for a few more weeks, you can visit the site now to learn more about how it works, and we felt so sure that Teri would be a good blogger that we wanted to launch this blog right away. I've known Teri for years, having first met in South Carolina where she was the editor of the local weekly. She writes an amazing blog called Walking off the Big Apple, that is literally the best non-film blog I've read lately, so I've been wanting to have her write for us for some time now.

What does the world need with another film blog, you might ask? I think that Teri’s idea for the blog – presented to me over some amazing sushi with mutual friends – is a unique angle for discussing films, and one that should catch on. As Teri says in her intro to the blog today:

Think of me as a curator who hands out cultural street maps of the film-going experience.

While she’ll begin the blog by working “in-family” on the Tribeca Film Festival, this blog won’t be partial just to Tribeca, or Reframe, films and events, so stay tuned post-fest for some great new takes on film.

Here’s a bit from her intro to the blog:

Shoe Leather: An Introduction

Think how many scenes you've seen in the movies of a character or characters strolling down the sidewalk or walking down steps of a courthouse or quietly strolling through a park. "Shoe Leather," a term used in filmmaking, refers to these parts of a movie that precede other scenes and serve to make sense of the transitions. These sequences, while seemingly pedestrian, establish necessary continuities, open up the action to establish a sense of place, and give the viewer an understanding of how characters arrive at their destinations.

I'll be writing this blog, titled "Shoe Leather," for Reframe in much of the same spirit as these shoe leather sequences. With the occasion of the Tribeca Film Festival and in anticipation of the curated digital collections forthcoming from Reframe, I'll be seeing several of the films featured over the next ten days and then suggesting on this site related films that go down that same street, so to speak. The films that form the 2008 festival naturally group into shared subject matter, such as films by or about visual artists, narratives of immigration, stories of military and state terror, and documents of fading neighborhoods, to name just a few categories, and I'll point you to similar films worth seeing. Think of me as a curator who hands out cultural street maps of the film-going experience. Read more.

photo credit: WOTBA

Smarter Way to think of Blogger/Critics

I've been following the ongoing conversations about critics vs bloggers and the changing nature of film criticism with much interest. Karina Longworth has had some of the best coverage at Spout, and we (TFI) are planning a panel about this at the festival, but what I haven't heard mentioned is how this is just one tiny part of much bigger changes hitting our culture in the wake of digital. We sound so quaint now actually, and I can only imagine people looking back 20 years from now (maybe 5??) laughing at us for having this conversation. I haven't been able to exactly explain what I think is going on here, but it's definitely part of our shift from orality to electracy, which I've mentioned before and am cribbing from Greg Ulmer. To debate about print journalism vs blogging is as absurd as to debate about print vs web. It's not either/or, it's something new altogether.

Bruce Sterling from Innovationsforum on Vimeo.
In thinking about something else, I stumbled upon this great video lecture from the science fiction writer Bruce Sterling addressing an interface and interaction design conference. The video is long, at close to 40 minutes, and the best stuff is at the middle and the end, but it's worth watching as he describes the possibilities of the future, and what we already have now, very well. At the end, he states (close to a quote) -

It used to be you were a print man or a TV man, and those distinctions don't matter anymore.... The net and its adjuncts are becoming a hybrid meta medium that connects everyone, everything ever place.... Art, Photography, Writing, Literature, Cinema, Design - we used to have all of these formal hierarchies of the creative disciplines that are now all coming violently apart, right in front of our eyes.

He's right, and the people its affecting don't seem to know what's going on, but it's all interconnected in new ways and we are fundamentally different for it. The hand-wringing we're seeing now over critics/bloggers will seem very quaint in just a few years.

New Indie Coalition is so 90's

There's a new indie coalition that seems to have formed. I can't link you to it, because in a fit of genius, the organizers have not started a website, nor a blog, or anything else you would expect for modern advocacy. Instead, drum roll, they started a listserv. And how did I hear about it? Someone picked up a copy of a three page, single-spaced diatribe they distributed at a recent media conference, and gave it to me. The document is titled "A Call for an Independent Producer's Voice in the Digital Debate" and some of their points are valid. In summary, it seems to be saying - hey, all this YouTube and other digital stuff is great, but what about indies that need to make a living. This conversation itself is one worth having, so that's why I'm listing it here, but I have to say I am more than a bit weary of a coalition forming to address the changing needs of digital when their spokesperson (or people, I'm not sure, though I have a hunch who is behind this) can send out a document that worries about "itoones" treating indies fairly. The geniuses behind this should at least develop an understanding of what's going on before trying to address it, and not knowing how to spell what is arguably the most important piece of the pie is a bit, well, looney.

Anyone who knows me and my writing knows I care passionately about advocacy for artist's needs, but I am pretty sure that what is needed in this day and age is a new form of advocacy, and I'm pretty sure it should begin with more than a listserv, more than a mimeograph and more of a clue about the changing nature of advocacy in a digital age. Geesh, it's not like we don't have plenty of political examples to look at! Anyway, if you want to learn more, send an email to them at indiecoalition-subscribe at yahoogroups com.

In the meantime, I am thinking about how advocacy has changed, and will hopefully get to do something interesting about it as a result of our recently announced combination with the Tribeca Film Institute. It's keeping me too busy to blog - I am seriously humbled by some of my friends who can keep this up, but I hope to be back with more after the Tribeca Film Festival.

Help a filmmaker that rocks

I had the lucky experience not too long ago to see a work-in-progress of an amazing short film, Glory at Sea that I can only describe as a Neutral Milk Hotel film. Those of you who know that band can imagine what that means. Now it's premiering at SXSW and in a horrible turn of events, the director, Benh Zeitlin, was in a car accident just before his premiere. Luckily, he is alive and doing ok, but he suffered major injuries and has no insurance. Mark Rosenberg of Rooftop Films, an early supporter of this film, has made an excellent post about it on his blog, so just click there for the whole story, but I recommend taking Mark up on at least one of his great ideas:
+ SEE THE FILM!
+ SIGN THE FILM GUESTBOOK
+ SEND A DVD OF YOUR FILM
+ DONATE TO HELP COVER HIS MEDICAL EXPENSES

Find out more through Rooftop. And do see the film, it is amazing.

Be Kind to Rewind

I rarely do movie reviews here, and it's even rarer that I like a Gondry film (I couldn’t watch Human Remains) but I’ve got to jump into the critical fray on Be Kind Rewind, as I thought it was a perfect movie for the times – a zeitgeist film (though not a Zeitgeist one). Be Kind plays as a cinematic homage to YouTube. It’s about many things that are playing out in interesting ways in the media world right now. While made by an auteur, it celebrates “amateur” filmmaking, pushes a model of community/participatory filmmaking as superb to Hollywood, not to mention the power of media to build community, and even while it gives sweet tribute to the VHS and theaters, its very much molded with the YouTube generation in mind.

In addition to the homage to YouTube, the film picks up on the remix culture of sampling and remaking through the “sweded” videos, and it definitely comes down in favor of opening up copyright in order to stimulate creativity. The film even gets in some digs at the MPAA and the ridiculous way it deals with what’s going on – scared to death of something that can help them.

It's interesting that Gondry picks Jazz as the underlying theme for the film – in the premiere he noted it's because he’s s fan, but I think it's more interesting because of the way Jazz has always been about re-mixing while paying homage; playing and improvising while still having rules; and riffing off established well-known tunes while building entirely new visions.

I think it's also interesting to see all the other realities of our society right now being dealt with so smartly. Witness the switch of power from the baby boomers to the new generation as Danny Glover and Mia Farrow – two real world activists from back in the day – begin giving up on their dreams just as the younger generation comes up with new ways to solve the problems. It shows the changing nature of our neighborhoods - not just the bad side of gentrification, which is very real in the film, but also in the possibility of working together. It also shows the continual decline of culture, even in the smallest ways, such as when local kids tag over the beautiful graffiti across from the store. Sure, it’s a joyous film and simplistic in some ways, but so are the opposing stereotypes. One of the best moments, and most hilarious, in the film is when Jack Black and Mos Def break into the rival, big-chain video store to steal a projector and find that behind the monolith is another struggling local businessman losing money. Nothing is as simple as it seems in this film.

Another example of its subtle complexity: I love that near the end of the film, we watch the audience watching the film. They are in a theater – in a sense – watching the film together. The glow of the film washes over their faces, and the obvious tribute to watching cinema together is prevalent. But what’s interesting is that they are watching the film they made, together, not the work of one auteur. That’s the film we’re watching of course, but it still suggests that the group will win out.

But this scene is touching to me for another reason – one many people may find hokey on the surface – as the screen has been hung up over the front window, and we find an entire community watching with them on the other side of the screen. I can’t imagine Gondry wasn’t aware that in this he was once again talking about race in this scene. Race plays throughout the film. At the screening I attended, Elvis Mitchell went on a bit too long about this, but one can’t deny that this is a very sophisticated look at the nuances of race relations, and their history. While the digs at Driving Miss Daisy get laughs, you can feel that the pain on Mos Def’s face is real when he lashes out at Jack Black for the continued humiliation. Gondry wanted to film a remake of Back to the Future which would have been hilarious, but couldn’t because of legal issues. Interestingly, the reason he wanted to do it was to change the part where a white man gives the idea of rock to a black man. That one scene angered many in the black community, and Gondry wanted to “right” it in the sweded version.

So, what’s so poignant about this last scene? Many people don’t know this, but it was once common practice in many movie theaters, especially in the segregated South, to have the black audience sit on the back side of the screen and watch the movie backwards. Theater owners often had double sided theaters – one for white and one for black – and I am willing to bet this was not just an interesting trick for the film, but one that brings up race once again, but to say – look, on the other side of that screen was a community, and now they are part of the story.

With Profits in News

Todays NYTimes has a great article on how many nonprofits are starting to take a much more business minded approach to what they do, how foundations are considering these new models and even how some nonprofits are switching to for profit endeavors to help society. I think we'll keep seeing more of this, and I for one think that more nonprofits in the media world should be thinking like this. We're the best positioned, as media folks, yet most of us continue the same tired formulas. We're launching Reframe soon at my organization, and it takes what I call a with profit approach - using for profit models for social aims. More on that, and some other ideas we have up our sleeves soon, but in the meantime check out how Epals does it.