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The Question of Orphaned Works
by Richenda Fairhurst                                                                                     March 2006 

historyfishWhen it comes to determining rights, a photograph with no discernable copyright holder, despite searches for that holder, is said to be “orphaned.”  There is a debate at the moment as to whether or not it should be legal for people to use orphaned works.  Right now the legal bar for use requires "due diligence."  That means you must diligently search for the copyright or permissions holder.  If you come up empty, that image could be considered “orphaned” and you can use the photograph.  Still, you are not protected should the permissions owner find you and not be pleased.  They can still sue you for copyright violation and to recoup lost income.

Those who have dealt with vintage photographs know that tracking the copyright or permissions owner is often impossible.  You can search the US Copyright pages, attempt to track the (likely deceased) museum donor, compare the photo with local historical society holdings, consult photograph archivists, and still get zippo.  Nothing.  Nada.  Nowhere.

And there are millions of “orphaned” photographs.  So many, that not to use them would put a huge amount of history out of reach.  In some cases, a writer (like me) just needs a cool vintage photograph of a fish.  If it doesn’t matter which photograph, so I can easily choose a photograph with permissions that are established.  But sometimes you need a particular photograph of a particular fish.  In which case, determining permissions can become frustrating.

Ever been to an estate sale?  Many young people get no time off work for dealing with their grandparent’s “stuff” after that grandparent passes away.  Many did not know their grandparents that well, and do not feel connected to the town where their grandparents grew up, and from which their parents fled.  The estate sale “stuff,” which may already be kept in a storage facility, often simply gets thrown into dumpsters.  The “heirs” feel little connection to the "stuff" that isn't clearly family related.  They don't have any time at all to learn more.  They are under pressure to get home to their kids and to a job that is not paying them for time off. 

What vintage photographs survive such a purge can literally be left on a museum doorstep in a brown paper bag.  In the rain.  This has happened.

Or here’s another example.  A local photographic studio closes shop.  It had been in business since the 1920s, and over that time accumulated photographs of kids, families, community & corporate folk and events.  Older negatives, which the studio perceived to be of little economic value, were stored in a basement where many were destroyed by leaky pipes.  Some negatives were so old they self destructed into caustic chemical goo.  The remaining negatives, over 100,000 of them, were donated to a local, well run, historical society.  The society will likely be cataloging them for years.  

What if you have one of those photographs, without identifying marks, and want to use it.  It is just one of hundreds of thousands of these negatives.  How can you determine who is the rights holder when even the rights holder doesn't know they own the image.  Above that, it might have been a work for hire, so the historical society doesn't own the rights anyway.  Or perhaps it is already in the public domain.  How on earth can you know?  At some point it becomes unfair, I think, to put the burden on each writer to sort it out.  

This little scenario plays out all over the country every day.  I ask you, if writers can’t use “orphaned works,” it takes hundreds of thousands--millions--of photographs out of circulation.  We lose hundreds of thousands of images that comprise and document our history.   Some of these photographs matter.  The few your grandmother took of the first business women’s club in Chicago, or when your grandfather dedicated the downtown library, or the photos your grandparents took of the earthquake in ‘39.    

Of course, photographers are frustrated, too.  Why else the plea to protect “orphaned” works?  Some researchers are not informed.  Others print photographs that are very much wanted and protected by their permissions owners.  We really have to get this sorted out.

I have a plea to photographers.  Please, let writers credit you for your work.  Let writers find you!  Can we get a database going?   Those who care about whether or not they are credited or compensated, enter yourself into the database!  Plus, there are thousands of photographers,  photo archivists and researchers around the country who have information about photographs and photographers.  When I learn something about a photo, I take care to spread the word.  If we all did that, if there was a place to put all that knowledge, think of the difference it could make.     

Until that day, here are some tips for determining permissions.

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