You have determined that the works you wish to use are still fully protected by copyright law. You researched and researched to find the copyright owner to ask permissions to use their work. No listing appears in any of the usual reference guides or directories. You have conducted a search of the records of the U.S. Copyright Office. You have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. You have not been able to track any heirs or successors. “Fair use” is questionable. Is it “orphan works”? Even if it is, you can’t use that because Congress hasn’t passed legislation to address “orphan works.”
All of your efforts to obtain permission have failed. You send a certified, return receipt requested letter to the copyright owner’s former address or a relative’s address. You do not receive the return receipt. Later you receive the letter back stamped, “Undeliverable.”
This still cannot be considered a reason to use the material. But keep a copy of the returned letter and receipt if you get one.
After all this, you may simply find yourself at a dead-end but the works is relevant to the publishing project and there is no time to make significant editorial changes. Just because you cannot find the copyright owner does not mean you are in the clear to use the works.
What can you do?
1. Substitute with something similar
Ask yourself whether the works you can’t find is the only material you can use to make the same point. Find similar works of other copyright owners that are easier to find. Or you may be able to find similar works in the public domain.
2. Create an original
Create an Author original as long it is your art. Data cannot be copyrighted. But design can. Hire an artist to design your own works. Hire a photographer to replace a picture.
3. Re-evaluate market effect in fair use
If you have found that there is no realistic market asserted for this work, study carefully the terms associated with fair use and the market effect. It may be more flexible for use than you initially determined. You may be able to support a fair use claim under both the “purpose” and the “market effect” factors. Change the number of copies; redefine the scope in accessibility, or the expectations in distribution.
If still questionable, determine your risks of liability based on where your published work will be available. Reducing the risk of liability does not eliminate it. Keeping a paper trail demonstrating your efforts can be an advantage. Of course, you should always make appropriate decisions on the use of all copyrighted materials.
Janet
