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Orphan Works

“Orphan works” refer to works that are presumably still copyrighted, but whose owners may be impossible to identify and/or locate. In 2005, the Copyright Office commissioned several studies on the topic in order to better understand the problem and identify legislative solutions. The resulting report and new bill, H.R. 5439 “Orphan Works Act of 2006,” recommended changes to U.S. copyright law, including limiting remedies for infringement against users who have made a reasonable, good-faith, documented attempt to locate the copyright owner, and identifying remedies should the copyright owner subsequently re-appear.

Before you decide to use an orphan work, first consider the following alternatives:

Return to fair use

When you originally evaluated fair use, you may have focused on an assumption about the “potential market” for the work in question, and the possible harm to that market caused by your use of the work. If you discover that there is truly no permissions market for this work, you should reevaluate the fourth factor in the fair use analysis. You may find that this factor now weighs in favor of fair use. For more information, see the fair use page.

Replace the materials with alternative works

If you truly reach a dead end, you should ask yourself whether that specific copyrighted work is the only material that will satisfy your goals. In many cases, you can achieve your desired end results either by using works in the public domain, which are available for use with no copyright restrictions whatsoever, or by using materials already licensed by the University of Idaho.

Alter your planned use of the copyrighted works

Your initial plans may have involved scanning, digitizing, and posting copyrighted materials to a website, causing the copyright owner to deny permission for such broad uses. Changing your intentions to something more modest and controllable may either change the copyright holder’s mind or increase the likelihood that you are within fair use. Reining in the number of copies, scope of access, or potential for rapid digital duplication and dissemination, may also tip the balance in favor of fair use.

Additional Resources