Definition: "Orphan works" describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Even when the owner is not found, the user faces uncertainty whether or under what conditions the owner would permit use.
According to the "Report on Orphan Works" by the Register of Copyrights, submitted to Congress in January, 2006, the following are suggested guidelines based on the report recommendations to determine whether a copyrighted work is an orphan work and the user of the work would thereby qualify for the suggested limitation remedies for copyright infringement as suggested in the "Report on Orphan Works" for the recommended statutory language to amend Section 514 of the Copyright Law of 1976. The report recommends that should the copyright owner be located during use of the work, both monetary and injunctive or equitable relief limitations should applied and continued use of the work be permitted if payment of compensation is made to the copyright owner for continued use. To date, the amendment has not been passed by Congress and is not law.
Prior to use of the copyrighted work, have you conducted a "reasonably diligent search" to identify and locate the copyright owner?
A "reasonably diligent search" includes but is not limited to the following sources of information for the copyright owner:
If an individual: request information from the last known employer, professional organization, any known living family member, colleagues or friends, public sources in last place of residence, publisher or producer of last work, published biographical sources, and local public libraries.
If a publisher/institution/organization: request information from a library about mergers, out of business organizations/agencies, name changes, relocations, last known president, director, or other chief executive, existing similar businesses that existed when work was created, and last known place/activity of business operations.
In using the work in a manner that requires permission and the reasonably diligent search failed to identify and/or locate the copyright owner, have you made it clear to the public throughout the use of the work, that the creator and/or the copyright owner are another person or organization, i.e. provided attribution to the individual or institution, organization or publisher?
American Library Association Orphan Works
United States Copyright Office. Search Copyright Information