We’ve all been there. You have the perfect photo . . . verse . . . song lyrics . . . vignette . . . you name it . . . to open your book or a chapter within it. Having labored long and hard to locate just the thing, you are now certain that nothing else will do. There’s only one problem. It’s not yours and either you can’t determine who owns the rights, or you can’t figure out how to reach them, or they’re dead or out of business, or they won’t answer you.

What to do?

Should you forge blindly ahead and risk challenge or suit on the one hand, or abandon your heart’s desire on the other?  Or is there a more elegant solution?

Well, if the answer were yes to the first question and no to the second, this would be the end of this article. But first understand that you only need permission to excerpt from works that are still under copyright protection, and even then where what you wish to use and how you wish to use it are not defensible as a fair use. Assuming that you have answered these threshold questions and that seeking permission appears to be advisable, the obstacles that may get in your way are several.

The Problem of Orphan Works

Copyright protection lasts for a very long time under current U.S. law – for the life of the author plus 70 years after the author’s death (or 95-120 years for works made-for-hire). And although we have a national public registry for copyright claims, its use is elective and not mandatory. So, copyright protection for a work continues long after the original copyright owner has died (or if the owner is a company, perhaps long after it has been dissolved or merged into another). For these older, but still protected, works we still need licenses for certain uses, yet the owner may be much harder if not impossible to find. We call these “orphan” works and the problem they pose – that there is a substantial body of orphaned work that is effectively kept out of productive use because of the risk, however small, of a copyright infringement suit – has long been recognized but not yet resolved.

Practical Solutions: Building a Record of Diligence

Start by making and memorializing diligent efforts to track down the owner of the work you’d like to use. The specific steps that will be required of you depend upon the nature of that work. In general, you should consult the following sources.

The first place to start is typically the records of the U.S. Copyright Office. For works registered or published since 1978, the records are available in an online database, searchable by, among other things, author, claimant, or title at: www.copyright.gov. (The search program is not especially user-friendly, so while finding a direct hit will give you some comfort, not getting a relevant result does not necessarily mean that it isn’t there, only that you didn’t find it.) For older works, you will have to go to the Copyright Public Records Reading Room in Washington, D.C. to check the Copyright Card Catalog (or pay the Copyright Office or a private search company to do it for you). For more about determining the copyright status of any particular work, see Circular 22 “How to Investigate the Copyright Status of a Work,” available at www.copyright.gov.

Your next stop might be published indexes of published material relevant for the publication type and subject matter – Books in Print (www.booksinprint.com), for example, or the Periodical Index (http://pio.chadwyck.co.uk/marketing.do), or any number of research tools available from ProQuest (www.proquest.com). University and large public libraries may have their own indexes and catalogs of library holdings and collections that can provide information about the author or publisher of the work at issue.

If you have identified the original publisher of the work you wish to use but cannot locate them now, it may be because they were acquired or merged or dissolved and their assets dispersed. Consider checking sources that identify changes in ownership of publishing houses and publications, including Literary Market Place for book publishers (www.literarymarketplace.com), the list of imprints available from  the International Association of Scientific, Technical & Medical Publishers for scholarly journals (www.stm-assoc.org), or relevant country reprographic rights organizations (like Kopinor in Norway, see a list at www.ifrro.org) for published works in general.

If you have identified the author or creator of the work but cannot locate them currently, try biographical resources for authors like the Gale Literary Index (www.galenet.com), or business or personal directories or search engines (like LinkedIn or Facebook).

Consider searching for other citations to the same work in recent relevant literature to determine if the citation to the underlying work has been updated by other users or authors.

Non-text media present special challenges. If what you have is a photograph or a video or a sound recording, there may not be an unambiguous title to search on . . .or an identified creator or owner. Although if what you have is a digital file, you may find some of this information in the metadata. But if what you have is just a photo print or a 70mm IMAX HD film or an audio cassette, determining what to search for is half the battle. Fortunately, digital search technology is helping to solve this problem. If you have an image, but you don’t know where it came from you can actually load the image itself into a search engine on Google images to search for other instances of that photo on the internet, some of which may have author/owner information associated (images.google.com). Also in development is the PLUS Registry (Picture Licensing Universal System) at www.plusregistry.org. For music, the searchable licensing databases at ASCAP.com and BMI.com can help you locate the artist, music publisher, and record label for any given work.

Memorializing Your Efforts to Get Consent

Keep a log of every step you took and source you consulted, unsuccessful as well as successful, to track down the authorship or ownership or copyright status of the work at issue. If you have identified and located an author or owner, and have attempted to contact them, keep a record of the date and substance of each of your requests for permission and every follow up attempt. If you receive no response from the rights holder, you may choose to accept the business risk of reproducing material without permission. In that case, a log of the attempts to contact the copyright holder will show a good faith effort to obtain permission. This, by itself, will not absolve you of liability – you cannot shift the responsibility or burden to the copyright owner by telling (s)he that you will use her/his work unless you hear otherwise from her/him – but a record of respectful requests and diligent follow up coupled with a lack of any response can serve to reduce the size of any likely judgment and make the claim easier to settle as explained below.

Acceptable Business Risk and Reserving for After-the-Fact Permissions

Sometimes the cost of clearing rights exceeds the likely cost of dealing with a claim after the fact. Recognize that you will not be in a great bargaining position and that the cost will almost certainly be higher than if you had been able to negotiate a license fee when non-use was still an option. However, if you make a reasonable estimate of what permission for similar uses would likely cost and if you set that amount aside in a reserve account for contingency claims, you won’t be surprised. Your estimate in any given instance may turn out to be high or low, but overall you will have mitigated the consequence of later surfacing claims and will have a fund from which to satisfy them. And, there is a three-year statute of limitations for copyright infringement claims so at some point down the road your risk will have dissipated and you may be able to shift those reserves over into owner’s equity.

Insurance Against the Worst Case

For those risks you cannot reserve against and for the peace of mind that lets you sleep at night, consider purchasing media perils insurance coverage. One source of such coverage, with an application and enrollment process that you can complete online, is: www.publiability.com.

When typographers talk about orphans, they are generally referring disapprovingly to the solitary lines of type left at the bottom of a page when there isn’t room for more from the same paragraph. Correspondingly, a widow is the term for a solitary line at the top of a page. . . and there is a mnemonic for keeping the two of them straight, “Orphans are left behind and a widow must go on alone.” Don’t be a widow when it comes to orphan works. Until we have a legislative solution, use the tools available to track down the authors and owners; record your efforts to find them and secure consent; and, for those cases where your efforts are unavailing but your editorial and business judgment tell you that the benefit from use outweighs the risk, reserve and insure for the occasional claim that might arise.

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Steve Gillen teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. Steve worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood, Herron & Evans (a 145-year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. Steve is a long-time member of the TAA Council and a regular speaker at TAA conferences.