An “orphan work” is a copyrighted work for which copyright clearance is required, but:
- the identity of the owner of the work is unknown; or
- the owner is known, but cannot be located.
When faced with third-party material that you believe may be “orphaned,” first consider whether any other exception allowing for the use of the copyrighted work without securing permission may apply. For example, when seeking to use an excerpt of an out-of-print work for which neither the publisher or nor author may be found, consider whether fair use applies.
If none of the relevant exceptions apply, next determine whether the work is truly orphaned, i.e., whether the owner’s identity and location truly cannot be determined. The Society of American Archivists is one of a few organizations that have identified excellent strategies for searching for the owner of works that appear to be orphaned.
Please keep in mind, however, even where the author may not be located for permission, your use of an orphan work is technically considered copyright infringement unless fair use or some other exception under copyright law applies. Even proposed orphan works legislation currently under consideration allows merely for the reduction of penalties for users of a suspected orphaned work if after utilizing diligent efforts to locate the work’s owner the owner could not be located.