Using British Orphan Work (U.S-based)

[Elle Hayward]

Hello,

We are hoping to re-produce images by a photographer who died in 1990, the images themselves date between 1948 - 1959.

I've done a very thorough search, and I know the copyright holder's name as relayed in the photographer's will. However, they are nowhere to be found, not in public records. I've even sent letters to their last known address.

I reached out to a publisher who has re-printed their photographs in a book, they haven't had anyone come forward. They last made contact with the copyright holder who was said to be very old and gave away negatives.

The National Portrait Gallery holds some of their works, but views the images as orphan works and therefore in copyright until 2060.

I wanted to file these as orphan works, but this only applied to UK usage. We are partly US-based.

Any ideas as to what to do? Can I include a rider? The images are discussed at length, and are criticised as a genre, perhaps they will come under fair use as a commercial publisher?

Any advice is appreciated. Many thanks!

[AndyJ]

Hi Elle,

I can't see a simple way of publishing the photographs outside of the UK. Obviously the US doesn't have a similar orphan works system. I very much doubt if the fair use system is going to cover what you want to do*. As you are probably aware, the Federal courts examine fair use by addressing the four factors contained in section 107 of the Copyright Act 1976.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In all four of these categories I think your use would be judged as being too close to the rights of the copyright owner; the fact that the owner can't be located would not have any impact on this assessment. It would be sufficient that the owner has the theoretical ability to exploit the photographs.

You don't mention the nationality of the photographer or his/her heirs, but I am assuming that both were/are British if the National Portrait Gallery holds some of his work. While a UK Orphan Works licence would only be valid within the UK, that wouldn't stop you from publishing the photographs in the UK and making them available worldwide. Clearly you might be liable for infringement outside the UK if you did this, but if the current copyright owner is British they would most probably wish to sue in the UK courts and you would be indemnified against that eventuality due to the orphan works licence. The only other downside might be that the UK Intellectual Property Office (IPO) might assess the market value at a high level and this would in turn lead to a higher licence fee.

Have you used the IPO checklist for making a diligent search? It lists a number of agencies who might possibly have current details of the photographer's heirs, although if the NPG have classified his work as orphaned, this is probably a long shot.

Sorry I can't be more helpful.


* You might want to check out this aspect with an attorney in the USA.