An orphan work is a term used to describe a copyrighted work, published or unpublished, whose proper rightsholder is difficult to determine or impossible to contact. This may occur for a number of reasons. The work may have been originally published anonymously. Or the rights may have been bequeathed to a relative, an estate, or a publisher. Any work that, through due diligence, has no identifiable claim to ownership is considered an orphan work.
The use of orphan works carries inherent risk. There is always the potential for litigation against use from previously unknown rightsholders. Therefore, any use must be evaluated and weighed against these risks.
There are alternatives to using orphan works that should be considered.
- Fair Use - Apply the fair use doctrine to your proposed use. If the work is unpublished or the rightsholder cannot be identified or contacted, the potential effect on the market for the work may be significantly limited, thus weighing more in favor of fair use.
- Alternative Source - If the risk is too great to use an orphan work, consider locating an equivalent or similar source that would still meet the original purpose of use, preferably one with an identifiable rightsholder and a relatively easy way to obtain permission.
- Re-examine Use - Take the opportunity to re-evaluate the proposed use. Perhaps there are only portions of the work that would be relevant to the original purpose that would be justified through fair use and would avoid the permissions process altogether.
Adler, P., Band, J. & Butler, B. (2011). Resource packet on orphan works: legal and policy issues for research libraries. Association of Research Libraries.
Please note that the above information is for reference purposes only and should not be construed as legal advice. It is advisable to always conduct a Fair Use Analysis whenever there is a question regarding the lawful use of copyrighted material. If, after careful evaluation, it is determined that the use of particular material would violate copyright law, or if you need to purchase copyright permissions for such use, please contact Matthew Van Sleet at 781.891.2311 or email@example.com.