From Art Law Journal:
An orphan work describes a copyright-protectable work whose owner is unable to be identified. This can be for any reason but is most often due to the passage of time, incomplete work-creation records, or the bonafide rights holder being unaware that they own a copyright (i.e. if a copyright passes by death to a next of kin). This problem is increasingly more prevalent in today’s technological era as the mass-digitization of copyrighted works puts so many works within easy reach of anyone with a click. Orphan work issues are usually discovered when someone desires to use a particular work and since they cannot locate the copyright holder, they cannot receive the required permission. For example, publisher’s or other corporate entities won’t allow the use of the work without a copyright clearance due to the legal exposure of a potential infringement. By some estimates, there could be tens of millions of orphan works online.
While other countries have passed laws to deal with orphan works, the U.S. has not, requiring a user to analyze the risk before committing to using the orphan work. The initial analysis is straightforward. Under US copyright laws, an orphan work is entitled to the same exclusive right protections that govern all copyrighted works so using an orphan work without permission is typically an unarguable infringement of copyright.
So, what is a new user supposed to do when faced with the reality that the owner cannot be located? Here is a non-exhaustive list of major areas of concern one should look into before using an orphan work.
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The US has passed numerous copyright laws regarding the duration of copyright protection and depending upon certain factors, one can determine whether a work is under copyright protection or in the public domain. The term “public domain” refers to copyrightable works that are no longer eligible for copyright protection and, therefore, are free to use. While this determination may seem counterintuitive, if one can reasonably estimate the year an orphan work was created, that information can be used to determine whether the work is in the public domain. Due to changes in copyright law over time, the analysis can be a bit tricky.
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Unpublished works: Life of the author + 70 years
Are you able to date a photograph that you strongly believe has never been published, such as one found it in an attic shoebox, that could only have been taken from a person who died before 1948? The copyright in the photograph has probably expired as copyright duration only lasts for 70 years after the death of an author for an unpublished work.
Works published 1923-1977 without a copyright notice
Prior to 1977, U.S. copyright protection of certain types of works, such as books, required a visible copyright symbol “©” included on or within the work. So if you wish to use content contained in a published literary work from a defunct publisher that can be dated to before 1977 and the official work does not contain a copyright notice or other copyright attribution information on the introductory title pages, back cover, or other similar locations, then the literary work may be within the public domain for failing to follow copyright formalities (please note, there are always exceptions and copyrights are judged on a case by case basis).
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Let’s assume that a date of creation of a work cannot be determined or it can be and it is decades away from slipping into the public domain. In such a circumstance, best practices dictate that one side on the err of caution and assume the work is protected. As mentioned, rights holders in orphan works are afforded the same rights that govern all copyrighted works. This also means that any defenses applicable to the use of another’s copyrighted work without permission also apply to orphan works. The most prominent defense is “fair use.” We have touched on the concept of fair use in other articles but since fair use is often misunderstood, let’s take a look at the basic concepts.
The defense of fair use is typically defined as allowing someone to use another creator’s copyrighted work without permission. The policy reasons for why fair use exists stem from the U.S. Constitution. The copyright clause grants Congress the power to “promote the arts,” which has generally been interpreted to mean that incentivizing the creation of new artistic works is in the best interests of society. The concept of fair use is an extension of this ideal, as it would be harmful to society to limit the use of an artistic work in certain circumstances. Over time, certain types of uses have been determined to be fair use, such as for news reporting, scholarship and research, or commentary and criticism. For example, without the fair use exception to copyright protection, movie reviewers could not show clips of the movie without permission. This inability to effectively critique without showing the substance of what is being critiqued, would not be beneficial to society.
Link to the rest at Art Law Journal
The OP talks further about Fair Use, a topic about which PG has posted previously, which, under certain circumstances outlined in the copyright law, permits the use of a copyrighted work without the permission of the copyright owner. You can type fair use into the search box in the right column to find more than you might prefer to know about the topic.
The Cornell University Copyright Information Center has a lovely chart that can help a person determine whether a work is in the public domain. The chart is ©2004-2018 Peter B. Hirtle. Last updated 06 November, 2018. Use of this chart is governed by the Creative Commons Attribution 3.0 License. Comments and corrections are welcome, and may be sent to firstname.lastname@example.org.