ORPHAN WORK
DEFINITION
An orphan work is a copyrighted work whose rights holder cannot be identified or located after a diligent search, leaving would-be users unable to obtain permission despite good-faith efforts. The work remains under copyright; it is simply that no one can be found to license it.
WHAT IT MEANS IN PRACTICE
The EU addresses this directly through the Orphan Works Directive, which lets libraries, archives, museums, and public broadcasters use a work classified as orphan after a documented diligent search, without facing infringement liability for that specific use.
The US has no equivalent statute. There have been repeated legislative proposals for an orphan works exception, none of which have passed, so American institutions dealing with orphan works generally rely on fair use, risk tolerance, or simply choosing not to use the work at all.
Old photographs, unpublished manuscripts, and archival film footage are the most common orphan works, since these are the categories where original creators or their heirs are hardest to trace decades later.
A diligent search is not a formality; it typically requires checking copyright registries, contacting relevant collecting societies, and documenting every step taken, before a use can even be considered eligible for orphan work treatment where such a regime exists.
AN EXAMPLE
A European museum wants to digitise a box of unattributed 1940s photographs found in a donated archive. After conducting and documenting a diligent search for the photographer with no result, it registers the images as orphan works under the EU directive and proceeds with digitisation.
WATCH OUT
Because the US lacks an orphan works statute, treating a work as 'probably orphaned' there provides no actual legal shield the way it does in the EU.
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