Orphan Works- What Are They?
'Orphan Works' are artistic properties that do not have a specific author and/or it has been impossible to locate the photographer who made the image. The practical implication for this situation is that under normal conditions if one wishes to use an image, the photographer would be contacted and one would get written permission. Well, what if the photographer has passed away, or simply the studio has gone out of business?
With the exception of use for educational purposes in a classroom (fair use), the person who wishes to use the image is out of luck. Legally, one can not copy the image or use it for their own purposes. Simply because a logo, watermark or other information that can not be readily found does not give one the right to assume that it is public domain.
If the photographer, his family members, estate, or any legal representative would see an image in use that would belong to the original photographer, a major lawsuit could and probably would happen against the individuals who stole (yes 'stole')the image. A diligent search is necessary before any image can be used by someone who did not make the original image.
One such problem can be seen when a picture from a swimsuit model is taken from the Sports Illustrated annual issue. While the infringer may think it may be funny to delete the SI logo from the image and post the image on Facebook as his new girlfriend, not contacting the magazine will almost certainly land him in hot water. Simply because the photographers name was not directly next to an image does not mean that he has the right to use the image in any manner whatsoever (this is NOT fair use).
Until congress settles on a law that deals specifically with the issue of Orphan works, the best plan of action would be to search for another similar image where one could get permission, or even purchase a similar image from a stock site.
Bob Barford is a published photographer based out of Southern Pennsylvania.