Sometimes, determining the creator of a work is really difficult, or impossible, even after diligent hunting and searching. These “orphans” have no clear copyright owner, but that doesn’t always mean they’re out of copyright or in the public domain.
Galleries, libraries, archives and museums (GLAM) are full of works with no discernable creator or provenance. Where the publishing company is defunct, or the government department no longer exists, for example, it’s unclear who owns the copyright for books. Digital images can be passed through so many hands that the metadata containing original creator identification is stripped.
The music industry is so fluid, that copyright ownership can pass through many hands in a very short space of time, with mergers or record labels, legal contracts and acquisitions, and catalogs are lost. And there are many films, such as historic footage, news broadcasts, home movies, educational and independent films, which lack clear copyright owners. But not having an identifiable creator doesn’t mean it’s up for grabs for use.
Different countries have different ways of dealing with orphan works, but most agree that using these works is problematic, because of the risk to your reputation, your relationship with other institutions or parties, and financial penalty (up to $50,000 fine in New Zealand).
Technically, if you cannot find the copyright owner, using an orphan work is unpermitted, and you will be infringing copyright. In New Zealand, if you wish to use an orphan work, you must be able to legally prove that you, with due diligence, did everything you possibly could, to identify, locate and request permission from the copyright owner, prior to use or production. Keeping written documentation of these efforts is necessary for proof, as a defence, should a legitimate copyright owner sue you for copyright infringement.
If you choose to go ahead and use a work for which you can’t find the copyright owner, be sure to include a notice like this: “if you believe that copyright infringement has occurred in any of this content, please contact...” Perhaps the owner will contact you, and the mystery will be solved!
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Written by Karen Workman, Kaiwhakahaere Whakapa | Creative Rights Educator