Copyright Reform to Free Orphans?

Veteran filmmaker Robert Goodman is working on a documentary about the first pop culture phenomenon of the 20th century: American picture postcards. But securing permission to use many of these works -- photos and illustrations that are around 100 years old -- is an impossible task, as many of the original owners are unknown or dead, or the publishing companies no longer exist.

The uncertainty of copyright ownership means Goodman, an Emmy-nominated director with a long career in film, photography and writing, is facing substantial costs, a lot of tedious research and, if he's really unlucky, lawsuits.

"There's no good copyright clearinghouse to go to and say, here's all the people who copyrighted their materials and here's how you find them," said Goodman. "You're left with trying to find their relatives, and we live in a society where people, on average, move every seven years. It's an impossibility."

Stories like these about so-called "orphan works" -- items still locked up under copyright but where the owners are unknown or impossible to locate -- are leading the U.S. Copyright Office to try to fix the problem.

The office is soliciting reply comments until May 9, and has already collected and posted more than 700 initial comments from artists, academics and copyright owners.

Jule Sigall, associate register for policy and international affairs for the copyright office, said the office will hold public hearings this summer and report its findings to the Senate Judiciary Committee by the end of the year. It's possible that Congress will address the orphan works issue with legislation.

"We're hoping to get a good factual record of what the problems are (and) what obstacles people are running into," Sigall said. "We also asked people to propose solutions. There seem to be a lot of good suggestions as to the type of mechanisms that could be used to solve the problems."

The copyright office wants to find a solution to satisfy those who want to build on orphan works without jeopardizing copy protection for owners.

Even if the risk of a copyright infringement claim is low, creators who build on another's work do not want to take the risk of getting sued. Copyright owners can ask for up to $150,000 damages per work infringed.

Among the suggested solutions: establishing a database of current copyright owners who want their works protected (under current law, copyright owners are not required to register). Or, if a person can prove that she made a reasonable effort to find the owner and could not, she could use the work without fear of incurring costly penalties.

Before crucial changes in copyright law in 1976 and the 1990s, driven by Disney and other powerful copyright holders, many of these resources would likely be in the public domain, available for anyone to use after copyright expires.

For most of the 20th century, copyright owners had to register and were granted protection for 28 years. They could opt to renew for another 28 years. Research cited by the copyright office shows that "less than half" were renewed under this system, leaving a flourishing public domain.

Now, copyright protection is given as soon as an item is in a fixed medium, and the term has been extended to life of the author, plus an additional 70 years. In 1992, works created before 1976 were automatically renewed, locking up many works just as they would have returned to the public. Plus, copyright owners are no longer are required to register.

In Goodman's case, he must get permission for each of the estimated 800 to 1,500 images that the film will use in its final cut. That involves reviewing the law to determine what images are likely still protected by copyright, and then using tools like the internet, phone books and public records from small towns to locate the presumed owner or that owner's heirs or estate. Filmmakers also comb through company records, some of which are out of business or bought out. And plenty of the postcards are not labeled at all, making it impossible to know who took the picture and the picture's copyright status.

And Goodman is just one example.

According to comments submitted to the copyright office, one married couple couldn't get a wedding photograph repaired: The photography shop would not scan and reprint the photo because it was taken by a professional and the shop was afraid of violating copyright, even though the photographer was out of business.

"For heaven's sake, this is a photograph of me and my wife, and I can't have it legally repaired!!! Wrong, wrong, wrong!" wrote William Haynes.

Bil Corry wanted to publish old issues of Desert magazine to the web, because it included interesting historical information about the people, places and plants of the American southwest. He thought it would be a free, useful resource to others. The magazine, published between 1937 and 1985, had gone bankrupt and its assets were sold, but he had no way to track down who owned the assets or the contents of the magazine.

"I thought about it, I registered a domain to do it, and then I started to look at the legal issues and I decided not to proceed," Corry said. "For a hobby it was just too much work."

Determining the copyright status of out-of-date software programs and games, old sheet music and out-of-print books on histories of families and towns for genealogy research are a handful of the other scenarios that have baffled the public. Some fans of old-time radio would like to broadcast or perform old radio plays but can't find the copyright owners. Amateur singers who want to record songs they've sung in church are turned away because the studio doesn't have the staff to research who owns the various copyrights.

In the meantime, those who want to build on old creative works will work to track down whatever copyright owners they can find.

"It's a lot of horrible grunt work because it's mostly dead ends," Goodman said. "I will have to hire a couple of people to do this research. I don't know how long it will take. It could take six months to research one image to make sure that we're safe. That adds (an) enormous amount of expense to the project."

And yet, for some, there is no guarantee they will be free from liability.

"We will do everything in our power to cross all our t's and dot all the i's, and we're still going to get nailed. Somebody's going to come out of the woodwork," Goodman said.

He added: "At what point do you eliminate my ability to comment on popular culture because of copyright issues?"