Citing orphan work

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  • I have a faculty member who wants to use a figure (illustration) from a book. The publisher says they no longer own the copyright; it has reverted to the author. Faculty member cannot locate the author. How can she cite this in her dissertation? She obviously can't say used by permission.
  • If she is using just a single illustration it could be a fair use, depending what it is.

    But if it doesn't seem to be a fair use for some reason -- Use of orphan works is still up in the air in this country. There really hasn't been a clear ruling yet on what you can do or what constitutes a reasonable search for the auther. Here's the wiki entry I've been working on for the upcoming CAN Wiki:

    An orphan work is one whose owner is difficult or impossible to find. In Canada, someone who wants to use an orphan work can apply for an "unlocatable copyright owner" license that will allow them to use the work for five years. In the United States, the House of Representatives did consider similar legislation that would limit the damages owed by a user who made a reasonably diligent, good faith effort to locate the copyright owner. The Orphan Works Act did not make it to a floor vote, but is expected to be reintroduced in early 2008.

    The Canadian model offers a useful structure but in practice it is thought to be too exhaustive in the requirements for searching for the copyright owner. (However, their website does list only 7 cases dismissed or denied in contrast to 217 licesnses issued; see

    For another model, see for the comments of Google representatives to the Library of Congress's call for comments on the orphan works proposal. This document takes into account the needs of high-volume users like Google and university digitization projects, where the Canadian model is useful primarily for one-shot deals.
  • As far as how to cite the work, the faculty member can still mark the illustration (c) Author's Name, along with the year it was created if she knows it. I would argue that such a use - including a single copyrighted image in a dissertation - would be fair, and so permission wouldn't be necessary anyway, but in academia, citation is still important.

    In dealing with orphan works, it's also a good idea to keep a record of any searching you do for the original copyright holder. In the very unlikely event that the copyright holder surfaces, proof of a reasonably diligent search may provide some legal protection, even though there are currently no laws in the U.S. that guarantee it.

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