Fair Use Question Of The Month: Orphan Works
This month's fair use question comes from a filmmaker who wants to use photos and letters from a now-deceased man in his film but cannot find the copyright owner.
You can find this question and more in Pat Aufderheide and Peter Jaszi's new book, Reclaiming Fair Use.
Dear Center for Social Media,
I'm making a movie that is part documentary and part fiction, using the photos and letters of a now deceased man found in a photo album discovered in a second-hand store. I have been unable to locate the copyright owner through a cursory internet search. Can I use this material under fair use? Is the unpublished photo album even copyrighted?
- - - - - - - - - - -
You are probably using copyrighted material, unless it is so old that it has fallen into the public domain. And you probably need to do more than a quick Google search to make a good-faith effort to find the owner. But after you have, you still may not be able to find the owner. Then you're dealing with an "orphan work," copyrighted material whose owner is missing. Current copyright law makes no special provision for using orphan works. You may, in that case, want to employ fair use, which is available for any kind of material, including orphan works. You might want to start by consulting the Documentary Filmmakers Statement of Best Practices. You will find the second (illustrative) and fourth (archival) categories useful. You will want to ask what your reason is for employing this material. Are you using the photos and images of letters to further the explanation you are making in the documentary part of the film? Are they important to that explanation? Some of your film is fictional. While fair use has been employed in fiction films, many of the arguments for fair use in documentary would not apply. In the fiction part of this film, you probably have enough opportunity to create material that you do not need to consider using this material under fair use. It is also worth remembering that the law specifies the effect of the use on the market as one consideration that influences fair-use decision making. When a work is truly "orphaned," then -- by definition -- its owners aren't making a licensing market for its use. This could add additional punch to your argument for fair use.
Good luck with your project!
Center for Social Media
Helping People Make Media That Matters
We investigate, showcase and set standards for socially engaged media-making. We organize conferences and convenings, publish research, create codes of best practices, and incubate media strategies. More...