right?), then statutory damages are not available. Since orphan works are, by definition, not being commercially exploited, compensatory damages would be insignificant. Also, if a non-profit, educational library acts on the good faith belief that a use of copyrighted material is covered under fair use, there may be no statutory damages at all.[1] Filing a lawsuit is expensive for the copyright owner, too, so if an owner thinks your library is infringing her copyright, you will probably get a letter about it and have a chance to reach an agreement. She will probably just you to remove the work from your web site, which you will do!
The Copyright Office produced a report on orphan works calling for legislation that would add some certainty to the orphan works mess.[2] but agreement has not yet been reached on what steps libraries would have to take for an adequate search and what kind of liability protections should be given. Until Congress passes a law, libraries are going to have to make risk calculations when deciding what to do with orphan works. Our take is that if you do due diligence in trying to see if the work is copyrighted, tried to locate the copyright owner, and reasonably concluded that your use is a fair use, you should be fine.
Question: I found the copyright owner and asked them for permission, and they said no! Can I put the photo online anyway?
Answer: Again, maybe. Copyright gives authors some control over their works, but hardly complete control. Being denied permission doesn’t affect the fair use analysis, so if you think fair use covers your use, it doesn’t matter if the owner said no.[3] Of course. the owner now knows what you want to do and might complain, but again, filing a lawsuit is an expensive proposition.
- ↑ 17 U.S.C. § 504 (C) (2) (i) (2006).
- ↑ Register of Copyrights, Report on Orphan Works (2006), available at http://www.copyright.gov/orphan/orphan-report-full.pdf.
- ↑ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 1.18 (1994) (“we reject Acuff-Rose’s argument that 2 Live Crew’s request for permission to use the original should be weighed against a finding of fair use. Even if good faith were central to fair use, 2 Live Crew’s actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litigation. If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.)
