United States v. Gordon
USCA First Cir June 23, 2022
In United States v. Gordon,
“Orphan works” are old photographs, letters, manuscripts, films, and other creative material that is likely still protected by copyright but has no identifiable copyright owner. “They include a vast treasure trove of newsreels, documentaries, anthropological films, portraits of minority life in the U.S., instructional films, and even some Hollywood studio productions.”
The Maine Attorney General’s office investigated and demanded that Gordon produce documents related to possible copyright violations. After getting no response to a demand letter, they referred the case to the federal government. A target letter was sent to notify Gordon that he was under investigation for “criminal infringement of movies protected by copyright.” The Motion Picture Association also sent a cease and desist demand.
Gordon argued on appeal that insufficient evidence supported the jury’s finding that he willfully committed copyright violations. Because the defense did not move for an acquittal at trial under the Federal Rules of Criminal Procedure,
The appellate court took little pause before concluding that abundant evidence supported the finding of willful infringement. Along with the notices and demands sent to Gordon, the court explained, Gordon’s own actions suggested it. “As a filmmaker, [he] took care to mark his own work for copyright protection. In fact, he described to a colleague how to seek copyright protection, the reasons for doing so, and the risks for filmmakers in using copyrighted work . . . .”
But the court’s opinion appeared to acknowledge that the uncertain status of orphan works under copyright persists as a problem for creators. As of the date of this post, there have been only proposed legislative solutions to the problem, such as limitations on remedies available to copyright owners if users have searched diligently to find them but been unsuccessful. The district court in Gordon instructed the jury correctly that “United States copyright law does not recognize the concept of an orphan work.”
As a result, documentary filmmakers and non-fiction authors must struggle to deal with orphan works on nearly every project. There may be no better source, for example, than home movies to recall a place and time.
Consequently, “identifying the date on which they would otherwise enter the public domain is also impossible. Even where that date can be determined, it is often a long, long time away.” Perhaps most infuriating for creators is that “using these works as building blocks for other works would not be opposed in most cases either — but there’s no one to ask.”
Copyright law’s onerous penalties give even a slight risk that some owner will eventually discover the use and assert a claim after a project is completed and released tremendous weight. “For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.”
Does such an assumption mean that the only creative decision is not to use the work? Not necessarily. Users of orphan works may be able to rely on the defense of fair use. If the work is central to a film or television project, an attorney evaluation that its use would not infringe anyone’s copyright can help support moving the project into development.
Section 107 of the Copyright Act
The court acknowledged evidence that Gordon “did his best to obey the law by following his understanding of the concepts of ‘orphan works’ and of fair use.” But because even an exhaustive search for an orphan work’s owner would not be a defense and fair use did not apply in his case, the First Circuit rejected his arguments as “wither[ing] in the light generated by the many warning signs demonstrating his knowledge that he was breaking the law.” Under the “clear and gross injustice” standard of review, the court explained that “even if we could discern some plausibility to Mr. Gordon’s arguments, there is more than sufficient evidence for the jury to have found a willful intent.”
The takeaway for creators? Correctly applied, the Copyright Act does include at least a possibility that you may be able to include an orphan work in a creative project even if you can’t find the owner to license it. So if you want to use a home movie, photograph, or other work that seems to be an orphan, you may not need to find something else. Contact an experienced entertainment attorney about whether the work may be in the public domain or used under the fair use defense to copyright infringement claims.
Read the decision here.
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