Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.
Today, we’re going to talk about orphaned works. If you’ve spent any time on Archive of Our Own, you may have seen this term as the site has set up an account so writers can break their tie to a story they’ve written, effectively abandoning their rights to it. In terms of copyright, an orphaned work is one that is believed to be under copyright (because we are currently in an environment where all works fixed in a tangible form are copyright protected, regardless of whether or not a copyright symbol is present), but the copyright holder cannot be determined for whatever reason.
As you might expect, trying to work with a work that has been deemed “orphaned” is a nightmare. Because there is no clear copyright holder, there is no one to approach for permission or licensing possibilities. That makes most orphaned works off limits in terms of derivative, transformative, and remix situations. There are conditions where you might be able to work out using an orphaned work, including due diligence to establish a clear copyright holder, acknowledging on the new artifact that part of the materials are orphaned, and making reasonable compensation to the copyright holder if they should suddenly appear. While there have been attempts to get the law modified to include an length of time on how long an artifact can be considered “orphaned” and protected by copyright, Congress has yet to actually sign off on any of them.
All of that said, an orphaned work can pass into the Public Domain the way any other copyrighted work does. If a year of creation can be established, then that year is used to determine when the artifact falls into the Public Domain. At the time of this writing, an orphaned work created in 1923 or earlier is in the Public Domain. (Aritfact’s creation date plus ninety years, to match copyright’s author lifespan plus ninety years rule.)
What this all really means is that if you want to use an artifact created after 1923 with no clear copyright holder, treat it like any other copyrighted artifact, do due diligence, and don’t make bad decisions.