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Copyright @ Whitman: Orphan Works

Definition

Orphan works are those works for which there is no clear copyright owner, or the copyright owner cannot be found.

Orphan works are protected under copyright law, as are all intellectual and creative works.  Because of the lack of obvious ownership, it can be almost impossible to obtain copyright permission for orphan works.

Can't Find or Contact a Copyright Owner?

If you have made every effort to find a copyright owner (see Tools) but either can't locate them or receive no response, you may be dealing with an orphan work.  Unfortunately, the work's status as an orphan work does not allow you to treat it any differently from other copyright protected material.

If you face this situation, you must either:

  • Reevaluate fair use.  If after a long search for the copyright holder you cannot find someone to give you permission to use the work, the "market effect" factor might need to be reevaluated.  Because the potential market for the content may potentially be unharmed by your use, you may be able to more generously evaluate fair use for the work.

  • Change the use of the orphaned content to fit within fair use.  By using only a portion of the work, or fewer copies, or limiting access to the work, you may be able to change the scope of the potential use to fit within the boundaries of fair use.

  • Find a replacement.  Is there content in the public domain, or with a more cooperative copyright owner, that could fulfill the needs of your project?

Orphan Work Resources

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