PACA - Digital Media Licensing Association
Orphan Works and OrphanSearch

"Orphan Work" refers to a copyrighted work whose owner cannot be identified or located by someone who wants to use the work in such a way that it requires permission. There is a concern that the uncertainty surrounding ownership of such works might needlessly discourage subsequent users from incorporating them in new creative efforts, or from making such works available to the public.

In 2005, Congress requested that the U.S. Copyright Office review this issue and provide a report. The Office issued a Federal Register Notice summarizing issues raised by Orphan Works, and solicited written comments from all interested parties. It held public roundtable discussions and met informally with various organizations. The Office determined that Orphan Works were a compelling concern and reviewed all recommendations for a solution. It concluded that legislation amending the Copyright Act's "Remedies" section was the most effective way to address the problem without conflicting with the legitimate interests of authors and right holders.

Although the bill proposed in 2006 was tabled, on March 13, 2008, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing on “Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users”. It is likely that a new bill will be passed this year, although we do not know what form the bill will take and exact language it will contain.

Meanwhile, the photo industry has been searching for ways to define "best practices" and to establish what qualifies as a "reasonable search" effort on the part of the buyer before an image is declared an Orphan Work. In addition to user's established in-house practices, PACA has undertaken an Orphan Search solution.

There are many ideas for a solution, such as a database of photos where a potential buyer could find an image and its creators' contact information using visual recognition. While such databases will be valuable resources for identifying rights holders, they provide a partial solution, as a database cannot allow for the identification of images that have not been registered. PACA's solution provides the missing piece of the orphan works puzzle, connecting buyers with rights holders.

PACA has implemented a low-tech solution to assist buyers in finding the creator of an orphaned image. When a buyer has an image without copyright information, they simply email a copy of the Orphan Work to orphansearch@pacaoffice.org. The email is validated by the moderator (a PACA staff member) and automatically sent out to all PACA members and affiliated associations.

Use of orphansearch@pacaoffice.org has the benefits of a completely automated solution with limited overhead. Simple and universally affordable, our plan leverages existing technologies and is convenient for buyers. We are asking our members to provide us with an “Orphan Search” email address—the research or sales person within their company to locate the photo. The buyer would be contacted directly by the agency or photographer who owns the work. This is NOT a solicitation for similar images; this is a service to find a particular image's owner.

Please note that if no one locates a match, you should not assume that you have completed all that a "diligent search" entails. There may be additional sources of information that should be checked before it is legal to use the work in question.