Question and Answer #3: Using Copyrighted Material When the Owner Cannot Be Found
by John Aquino on 04/30/12
Question: Over 20 years ago, I wrote a number of articles for a newspaper that has long since gone out of business. I was on staff, so I guess they were works done for hire and the publisher owns the copyright. I looked at them recently and said, “Gee, These are pretty good. They could make a book.” Knowing that I would need to get permission, I checked around to see if I could find out whom I might contact, and I couldn’t find anyone. Having made the effort, can I use them?
Answer: Well, you are not alone in this. I have a few articles published myself in defunct publications that I’d like to reuse.
I would first suggest that you try a couple more times to find someone connected with the publisher. If they went into bankruptcy, the bankruptcy records may give you a contact.
This may seem like a lot of work. But the answer to your question is, if you use the work without permission and the copyright owner and the copyright owner suddenly appears, the owner can claim you have infringed the copyright. The defense of “innocent infringement” applies to someone who does not know the work is copyrighted and even this is not a defense against infringement but is something the court will take into consideration when awarding damages. And what you describe is not innocent infringement because you have every reason to believe the work is protected by copyright.
For the record, Congress has had before it legislation concerning "orphan works"--works that are protected by copyright but their owners can't be located or are dead or are companies that are out of business. But Congress hasn’t done anything on it for the past six years. If they ever get going on it, it would affect your situation. So you could wait for Congress to act, but its track record suggests it could be a long wait.
So there are at last three possible options: don’t use the work—and this is often the guidance given scholars by their universities when they cannot get permission to use copyrighted works, revise the articles extensively so that they are not the same works that were published—which you may find yourself doing anyway unless you are one of those rare people whose writing has grown worse with experience, or look at a fair use argument. (You could conceivably do both the second and third.)
The thing about fair use is that Congress dealt with the issue of fair use by giving the courts four factors to consider, which means that there is no real determination about fair use unless you are sued. So, in deciding whether or not to use portions of or all of a copyrighted work on a fair use argument, you are really in a position of trying to outthink a judge.
When a defendant in a copyright litigation claims fair use, the court is asked to consider four factors:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Usually, when the question of whether one can use a copyrighted work under fair use involves publishing a book--which is a commercial use as opposed to a nonprofit or educational use (even if the book's publication will be limited or it’s not expected to make money)--then the person wanting to use the work fails #1, and that's usually the big one. If it's an educational use, you're three-quarters of the way to fair use. And so you most likely fail criteria #1.
You also fail #3--you want to use 100% of the work—a whole article as opposed to a small portion. If it were a Picasso painting, you'd want to use the whole thing and not just one of the subject's five eyes.
But you’d probably pass #2 and 4. The nature of the copyrighted work is old newspaper articles that you’d have to scour libraries to find and maybe couldn’t even find them there, and they therefore have no conceivable market value that could be negatively affected.
So it's a close call. It would be up to a judge to decide. Courts have ruled that some of the four factors could be more important than others depending on the circumstances, so it is possible that a court could find in favor of fair use even though the use is commercial. At least you would have a viable legal argument if you were sued. It may not be a winning argument, but it’s a viable argument, I believe.
When approached by the publisher’s attorney, you could give the fair use argument and then they would have to decide whether or not they want to take you to court, knowing that there is a chance they would lose. They could then settle with you for the license fee they would have charged you had the negotiation situation been clearer. On the other hand, they could just sue you and you'd have to go to court and pay attorneys fees. And you could lose.
It really comes down to a risk/benefit analysis. Your benefit is you want to use the articles. If you do not use them, you have no risk. If you use them, no copyright owner may surface, but if the owner does assert a claim you will be subject to an infringement suit. Your backup is you have at least one defense--fair use and, if you have substantially revised the articles, that the collective work is substantially different from the one published.
This is just my opinion based on what you’ve told me. We can talk about it more. But the decision on go or no-go has to be yours.
Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.
