Two weeks ago, a reader contacted me about copyright permissions after reading my Derivative Works article. The writer intended to use copyright-protected letters she thought would make a shocking exposé. After attempting to obtain permission, she failed to locate the author of the letters. Could she still use the letters?
Oddly, the inability to identify or locate a copyright owner for permission is a problem that happens more often than not (especially now in the era of mass-digitization which puts copyright-protected work within easy reach). Orphan Works, as these are called, are typically older works or works with little economic value. Sometimes the creative work in question has no copyright notice. Sometimes no verbiage about credit. Sometimes the author is dead and the rightful heir to the copyright unidentifiable.
Even if the copyright holder cannot be determined or located, orphan works are still protected by copyright law. Meaning, if you use an orphan work without permission, the copyright owner could still sue for infringement.
How To Locate A Copyright Owner
I can hear you screaming now – How unfair! After all, you tried to locate the owner. You read the Copyright Office Circular R22: “How to Investigate the Copyright Status of a Work.” You searched the US Copyright and Library of Congress databases. Maybe you paid the US Copyright Office to search the Catalog of Copyright for you. Maybe you hired a copyright search firm specializing in copyright record searches and permissions (like Thomson CompuMark). Regardless, your efforts revealed no trace of copyright registration or, if there was copyright registration, no indication it had been renewed and/or the rights transferred to another party.
The problem with these registration and assignment searches? The searches are not conclusive. Copyright registration is voluntary, meaning many works are not registered. Some copyright-protected works are untitled. Some are registered under different titles than known in the public. And some, while registered, have been assigned (the transfer of rights to someone else) but are unrecorded or secret or recently filed but not yet cataloged by the Copyright Office.
Analyze The Risk Of Using Orphan Works
If you are still determined to use the copyright-protected orphan work for commercial purposes, determine if the legal action is low (e.g. the copyright owner is dead and likely has no heirs; the reputational harm to the copyright owner is minimal) and the damages likely to be small (e.g. the copyright-protected material used is a small percentage of the published work or not integral to the published work as a whole; a negotiated license payment would be minimal). If, after your risk analyses, you move forward and publish using the orphan work without permission, be aware such use constitutes copyright infringement. At some point, the copyright owner could file a copyright infringement suit against you resulting in damages (like a reasonable fee that would have been paid if the two parties had been able to negotiate).
Statute Of Limitations And Fair Use
The statute of limitations with copyright infringement cases is usually three years from when the infringement was first discovered or should have reasonably been discovered. If you use the orphan work for non-commercial purposes, like one of the many uses considered fair use (e.g. criticism, parody, news reporting, classroom teaching, scholarship, or research), you may fall within the fair use defense.
While other countries have passed laws that address orphan works (like the UK), the US lags in this arena. Various legislative bills have been introduced in Congress designed to overcome the obstacles of using orphan works. These bills, one of which was approved by the House subcommittee, outlined a process for the use of orphan works if a good-faith attempt was made to locate the owner of the orphan work, attribution was provided if known, and a reasonable fee paid for the use of the orphan work for commercial purposes should the copyright owner come forward. As of the date of this article, none of these US bills have passed other than The Music Modernization Act in 2018 (which creates a process for the use of orphan work sound recordings).
Orphan Work Owners
If you are the creator of an orphan work, you can solve the above problems by registering your copyright. Registration allows you to enforce your rights should someone use your creative work without permission, while allowing others to locate you should they want a license.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.