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Orphan works are copyrighted works whose rights holders cannot be identified or located despite good-faith search efforts. The orphan works problem is one of the most challenging and enduring issues in copyright law, affecting libraries, archives, museums, documentary filmmakers, publishers, and anyone who wants to use older creative works but cannot find who owns the rights to obtain permission. The consequences of getting it wrong can be severe: using an orphan work without permission could constitute copyright infringement if the rights holder surfaces. PerspireIP helps clients navigate orphan works copyright challenges with practical risk management strategies.
What Makes a Work an Orphan?
A work becomes an orphan when the copyright owner cannot be identified or, even if identified, cannot be located to request permission to use the work. This problem is particularly acute for works created during the mid-20th century when copyright recordkeeping was inconsistent, copyright was often held by companies that have since dissolved, and contact information for individual creators has been lost. Photographs are especially susceptible to becoming orphan works because they rarely carry identifying information beyond the image itself. Amateur photographs, personal correspondence, unpublished manuscripts, and local newspaper archives all represent vast pools of orphan works copyright material.
The Legal Risk of Using Orphan Works
The fundamental legal problem with orphan works is that copyright protection continues to run even when the rights holder cannot be found. Under current US law, there is no exemption or safe harbor for good-faith users of orphan works. If you use an orphan work and the rights holder later surfaces, you could be liable for copyright infringement, including statutory damages of up to $150,000 per work if the copyright was registered before the infringement. The threat of statutory damages is a powerful deterrent that causes many legitimate users to simply forgo using valuable orphan works rather than risk infringement liability, resulting in significant cultural and economic loss.
US Legislative Efforts on Orphan Works
Congress has repeatedly attempted to address the orphan works copyright problem through legislation, but as of this writing, no federal orphan works legislation has been enacted. The Copyright Office has conducted multiple studies on orphan works and has consistently recommended legislation that would limit remedies against good-faith users who conducted a reasonably diligent search for the rights holder before using an orphan work. Proposed bills have generally included provisions requiring a diligent search, attribution to the identified author or rights holder, and negotiated compensation if the rights holder later appears. Despite broad support from libraries, archives, and educational institutions, legislative action has been blocked by concerns from rights holder groups about the potential for abuse.
International Approaches to Orphan Works
Other countries have adopted various approaches to the orphan works copyright problem. The European Union implemented the Orphan Works Directive in 2012, which allows certain cultural institutions to digitize and make available orphan works after a diligent search, provided compensation is paid if a rights holder later emerges. Canada has a Copyright Board system that allows licenses for orphan works after a diligent search, with a royalty set aside for rights holders who may surface. The United Kingdom implemented a similar licensing scheme. These international models provide guidance for what a US system might look like, though they are not applicable to US works or US users without relevant international arrangements.
Conducting a Diligent Search
In the absence of a statutory framework, the best protection available to users of potential orphan works is documenting a thorough, good-faith search for the rights holder. While a diligent search does not create a legal safe harbor under current US law, it demonstrates the user’s good faith and may be considered by a court in assessing damages if a rights holder surfaces. A diligent search should include:
- Searching the Copyright Office’s online catalog and records for registration and ownership information
- Searching the Copyright Office’s orphan works records and published renewal records
- Searching online databases including those maintained by rights management organizations
- Contacting relevant trade associations, publishers, studios, or other industry organizations
- Searching obituary databases, university alumni records, and other sources if the author is an individual who may have died
- Publishing a notice of intent to use the work in an appropriate publication or online registry
- Documenting every step of the search process with dates, sources consulted, and results obtained
Risk Assessment for Specific Uses
Not all orphan works uses carry the same risk profile. A nonprofit educational institution using an old photograph in a classroom context faces different risk than a commercial publisher using the same photograph in a bestselling book. Relevant factors include the commercial nature of the use, the scale of distribution, whether the work is the central feature or a minor element of the user’s project, the likelihood that a rights holder actually exists and will surface, and the potential exposure from statutory damages if the work was registered. PerspireIP helps clients conduct risk assessments for specific orphan works uses and develop mitigation strategies appropriate to the risk level.
Practical Mitigation Strategies
While no approach eliminates orphan works risk entirely under current US law, several practical strategies can reduce exposure. Setting aside a reasonable royalty equivalent in escrow or as a reserve fund, while not legally required, demonstrates good faith and ensures resources are available to compensate rights holders who surface. Purchasing errors and omissions (E&O) insurance for productions that use orphan works can provide financial protection against claims. Including clear attribution to the extent known and a prominent notice inviting rights holders to come forward can help surface rights holders early, before legal action becomes likely. Working with orphan works registries or rights clearance services that maintain databases of known rights holders is another practical step.
The Extended Collective Licensing Option
Extended collective licensing (ECL) is a mechanism used in some countries, particularly Scandinavian nations, that allows collecting societies to license works on behalf of rights holders who are not members of the society, including those who cannot be located. ECL provides a practical way to obtain licenses for entire categories of works without needing to identify and contact every individual rights holder. Some US institutions have explored voluntary ECL arrangements for specific uses, such as digitization projects, but without legislative authorization, these arrangements are legally uncertain and carry residual infringement risk.
Mass Digitization and Orphan Works
The orphan works copyright problem is particularly acute in the context of mass digitization projects by libraries, archives, and universities seeking to preserve and provide access to historical collections. The Google Books litigation highlighted how the orphan works problem affects large-scale digitization: Google’s ambitious project to scan millions of library books was challenged in part because many of those books are orphan works whose rights holders could not be identified or located to authorize the scanning. The settlement in that case was rejected by the court as going beyond what courts can authorize without legislative action, leaving the orphan works problem for digitization projects unresolved.
How the EU Directive Actually Works in Practice
European institutions have had a statutory route out of this problem since Directive 2012/28/EU of 25 October 2012. It was built for a specific purpose: to make digitisation and lawful online access possible for material sitting in public collections where the rightsholder cannot be found.
The route is not open to everyone. The Directive’s beneficiaries are a closed list of institution types — libraries, educational establishments, museums, archives, audiovisual heritage institutions and public-service broadcasting organisations. A commercial publisher, a documentary producer or an advertising agency cannot use it at all, which is the first thing to establish before spending money on the process.
The gateway is the diligent search. A beneficiary institution must ensure that a search for rightsholders is carried out in good faith, consulting the appropriate sources, before the status can be claimed. Critically, the Directive leaves it to each member state to determine what those appropriate sources are, and to publish a list of sources that must at minimum be consulted. The practical consequence is that the standard is not uniform across Europe: a search that satisfies the authorities in one member state may be thin in another, and an institution operating across borders has to work to the strictest list it touches.
What makes the system workable is mutual recognition. Once the status has been established in one member state and recorded, it is recognised across the Union, so the diligent search is performed once rather than twenty-seven times. The recording happens in a single public register: under Article 3(6) of the Directive, the EUIPO is responsible for establishing and managing a single publicly accessible online database, which launched in October 2014. The database lets an absent rightsholder search for their own material, see which institution is using it, and bring the status to an end.
That last feature is the one to plan around. The status is always provisional. A rightsholder who comes forward ends it, and the institution’s permission to continue stops with it — which means any project built on this route needs a documented plan for what happens when somebody claims the material, not merely a plan for getting the licence.
It is also fair to say the mechanism has been less used than its drafters hoped. The per-member-state source lists make the search expensive, the beneficiary list is narrow, and the permitted uses are tied to the institutions’ public-interest missions rather than to ordinary commercial exploitation. For many projects the realistic answer is still risk management rather than a statutory licence.
The UK Licensing Route and What Brexit Changed
The United Kingdom built something materially different, and for commercial users it is more useful than the European model.
Under the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014, which came into force on 29 October 2014, an applicant can apply to the UK Intellectual Property Office for a licence to use material whose rightsholder cannot be found. The differences from the EU scheme are the point:
- Anyone can apply. The scheme is not restricted to heritage institutions, so publishers, broadcasters and production companies can use it.
- Commercial use is permitted, not only public-interest or non-commercial use.
- The licence is non-exclusive and covers use in the UK only — it gives no protection in any other territory, which matters immediately for anything published online.
- Licences run for up to seven years and are renewable on reapplication.
The applicant must evidence a diligent search to the IPO’s satisfaction and pay a licence fee set at a market rate for the use. That fee is held for the absent rightsholder, so if the owner later appears there is money waiting rather than a claim for damages. For a commercial user, that conversion of an unquantified infringement exposure into a known, paid-up licence fee is the whole value of the scheme.
Brexit cut the UK out of the EU mechanism’s mutual recognition. A UK institution can no longer rely on the Directive route for cross-border online access, and material whose status was established in the UK is no longer automatically recognised in the EU. The two systems now have to be used separately, and a project covering both the UK and the EU needs clearance under both — the domestic IPO licence for UK use, and the Directive route, through an eligible institution, for the European side.
Canada’s Unlocatable-Owner Licence
Canada has operated the oldest of these regimes, and because it has a long record it is the best evidence of how much demand a statutory licence of this kind actually attracts.
Section 77 of the Canadian Copyright Act empowers the Copyright Board of Canada to issue a non-exclusive licence to an applicant whose reasonable efforts to locate the copyright owner have been unsuccessful. The Board sets the terms and the royalty, and the royalty is held so that an owner who later surfaces can claim it.
Two limits are worth knowing. The licence covers published works only, so the unpublished archive material that causes the most difficulty for heritage collections falls outside it. And it is territorial, like every regime in this area — a Canadian licence authorises use in Canada and nothing more.
The volume figures are instructive. The Board has opened 441 applications under section 77, granting licences covering more than 12,640 works. For a mechanism that has been available for decades, in a G7 economy, that is a small number. It tells you that statutory licensing is a precise tool for identified, documented, individual uses rather than a solution for the scale of material in a digitisation programme — the same lesson the European database’s low uptake teaches.
Building a Diligent Search File That Holds Up
Every regime above, and every fair-use or fair-dealing argument you might make without one, turns on the quality of the search you can prove you did. The search itself is ordinary research. The part people get wrong is the record.
A file that will still be persuasive in three years’ time records the search as it happened rather than summarising its conclusion:
- Every source consulted, dated. Name the register, database, catalogue or collecting society, the date of the search, and the search terms used — not just “searched the usual registers”.
- Negative results, captured. A dated screenshot of a nil-result search is evidence. A later recollection that you searched and found nothing is not.
- Chain-of-title attempts. Letters and emails sent to last-known publishers, estates, agents and successor companies, with the non-replies noted and the deadline you gave.
- Dead ends explained. Where a company was dissolved or an estate cannot be traced, record how you established that and from which source.
- A named sign-off. One person who reviewed the file and concluded the search was exhausted, with the date they did so.
Two disciplines turn this from paperwork into protection. First, retain the file for as long as the copyright could possibly run plus the limitation period — which for twentieth-century material means decades, far longer than most document-retention policies contemplate. Second, re-run the search before any significant new use. Material that was untraceable in 2019 may be traceable now: registers have been digitised, estates have been settled, and collecting-society databases have grown. A refreshed search costs little and removes the most damaging allegation available to a claimant, which is that you knew where to look and chose not to.
Pricing the Residual Risk Before You Publish
Where no statutory licence is available — which, for a commercial user outside the UK, is most of the time — the decision is not legal clearance but priced risk. That decision is easier to take, and far easier to defend internally, when the exposure is quantified rather than described as unknown.
The components are reasonably predictable:
- A reserve. Estimate what a licence for this use would have cost at market rate and set that sum aside. If an owner appears, you are negotiating from a position where you have already provided for the fee — which is close to what the UK and Canadian schemes do by statute.
- Takedown readiness. Know, before you publish, how fast the material can be removed from every channel it will reach. A use that can be withdrawn in a day is a fundamentally smaller exposure than one baked into a printed run or an offline distribution.
- Attribution and visible good faith. Credit the material as fully as the record allows and publish a route for a rightsholder to contact you. This both reduces the chance of a willfulness finding and frequently resolves the problem, because the owner who could not be found often finds you.
- Insurance and indemnities. Check whether media liability cover responds to an infringement claim of this kind, and resist giving a downstream distributor a full IP warranty on material you know is uncleared.
- A use-by-use risk tier. Background use in a scholarly monograph and cover art on a mass-market product are not the same decision, and should not go through the same approval.
One further step is worth building into the process: decide in advance who owns the decision. In most organisations an uncleared use is approved informally, by a researcher or a designer under deadline, and nobody with authority over the legal exposure ever sees it. Naming a single approver for anything above an agreed risk tier — and giving that person the search file, the reserve figure and the takedown plan — costs nothing and changes the quality of the decisions markedly. It also means that if a claim does arrive, there is a contemporaneous record of a considered judgement rather than an absence of one, which affects both the negotiating posture and the willfulness analysis.
None of this makes an uncleared use lawful. What it does is convert a decision that tends to be made by whoever is most willing to tolerate ambiguity into one that an organisation can take deliberately, document, and live with.
Conclusion
Orphan works represent a significant and unsolved challenge in copyright law that affects creators, educators, institutions, and cultural organizations seeking to preserve and share cultural heritage. In the absence of a legislative solution in the United States, the best approach is thorough diligent search, careful risk assessment, and practical mitigation strategies tailored to specific uses. PerspireIP helps clients navigate orphan works copyright challenges, conduct thorough rights clearance searches, assess risk appropriately, and develop mitigation strategies that enable legitimate uses of cultural heritage while managing legal exposure responsibly.