Orphan works are defined as copyright protected works where you cannot identify a copyright owner or where you can identify the copyright owner but the owner cannot be located. Consider the following examples:
1. You cannot identify a copyright owner
The work itself does not have a name, and you have searched through various different catalogs, databases, and other sources, according to the title or description of the work. Under copyright law, anonymous and pseudonymous works are still fully protected. Simply because you cannot find the name of the copyright owner does not mean that it is not under copyright. Nevertheless, you are left to ponder whom to ask for permission. Similarly, you may well be able to identify the original author or copyright owner, but that individual has died, or the company has gone out of business. You have not been able to track any heirs or successors.
2. You cannot locate the copyright owner
Alternatively, you have concluded that the work is protected, and you have been able to identify the likely copyright owner, but you simply cannot find that person or entity. No listing appears in any of the usual reference guides or directories. You also have conducted a search of the records of the U.S. Copyright Office, and you have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. Perhaps the original copyright owner was a company or organization that ceased doing business years ago, and you have not been able to find any person or entity that currently holds the rights. Perhaps the copyright owner died, but the heirs are untraceable. The copyright, nevertheless, lives on.
3. Works released online or through social media
Because copyright runs for a significant period of time and does not require formalities such as registration or renewal to ensure that a work is still protected, many works are often divorced from the rights information necessary to seek and obtain permission. This is becoming an increasingly difficult issue as it relates to scholarly communications because many works are being released online or through social media without identification or rights data associated with the works. For scholars, journalists and other academics, it becomes increasingly difficult to authenticate sources in the online environment. And, even if you wished to use the work fairly in the context of your scholarly work, you may be hard pressed to provide adequate attribution, a necessity in exercising fair use.
You have diligently investigated your alternatives. You do not want to change your project, and you remain in need of the elusive copyright permission. The remaining alternative is to explore a risk-benefit analysis. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access. You ought to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission.
Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. A copyright owner may still hold rights to the material and may still bring a legal action against you, based on copyright infringement. Your good faith efforts can be helpful, but they are not necessarily protection from legal liability.