Question: My library has a photograph of a local building we want to digitize and put online. No one knows who the photographer is. Can I just go ahead and put it online?
Answer: Maybe. The fact that the photographer cannot be located does not affect his or her rights. Do a bit of research about the work and photographer. Any bibliographic information might be helpful. If the photo is old enough, or was not registered or marked with a copyright notice during certain years, it might now be in the public domain (see the copyright duration chart in Appendix P to help determine if the work is still copyrighted). Check the Copyright Office’s database of copyright registrations to see if copyright over the photo was registered.[1] Ideally, you want to either find a copyright holder to ask for permission or determine that the work is no longer protected by copyright.
Question: OK, I’ve done all that, and I still cannot tell if the picture is copyrighted or who would hold the copyright. Now what?
Answer: At this point, you need to make a judgment call. Could your republication be fair use? Go to the four factors. (1) Character and purpose of use—is the use non-commercial, and is the use transformative, using the work in a new context or for a different purpose for which it was created? (2) Nature of the work—is the photo factual and just documenting the building, or is creative, like a piece of art photography? (3) Amount and substantiality of use—are you using the entire photo or just a part of it? (4) Effect on the potential market—does your use diminish the photographer’s ability to make money from the photograph? Given that the photo is not being exploited commercially and no copyright owner can be found, this factor would favor fair use in this case.
Dealing with orphan works always involves some risk. Could someone claiming to be the copyright holder come out of the woodwork and sue the library for copyright infringement? Sure. Is it likely? Not at all. We have yet to hear of such a case. How much are you on the hook for? Hard to say, but if the work had not been registered (you did check on that first,
- ↑ Copyright registrations filed after January 1, 1978 are searchable online at http://cocatalog.loc.gov. Pre-1978 registrations have not yet been digitized, though the Copyright Office plans to digitize them in the future. See http://www.copyright.gov/digitization/goals.html.
