Hi, Jannette -- 

The concept of an orphaned work (or orphaned collection) does not apply to copyright under current U.S. statutes. Copyright and intellectual property rights have always been separate from the physical possession of items under the law. Unless explicitly transferred to another entity (publisher, museum, gallery, etc.) by the author/creator, the copyright remains with the author/creator and passes on to his/her estate.  

It's possible to purchase the rights, along with the object, but it is essential that documentation exists to prove this (a note on a bill of sale, for example.)  If an item is old enough, the copyright term and extensions may have expired putting the item in the public domain in which case you have no problem. For modern works, the best course is to contact the last known copyright holder for permission.  

If you cannot determine the copyright holder (many works are anonymous, or become separate from the information about their creation), contact the donor or source from which the item was acquired.  Keep a record of those individuals you have contacted.  If you have made a reasonable effort, you could risk putting a photograph on your web site with a note that your institution does not have copyright and would appreciate hearing from the copyright holder.  Ask a lawyer for wording that provides protection against infringement/claims for damages.

There is also the legal concept of abandoned property which  applies to orphaned items. A number of states have passed legislation regarding property left at a cultural or non-profit organization with no directions as to transfer of title or disposal.  Museums, libraries and similar organizations can use this legislation to legally claim and then either accession or dispose of the property. This applies only to establishing a legal right to title to the actual item.  It does not transfer copyright or intellectual property rights. 

Abandoned property legislation is very helpful as people frequently drop items off for identification purposes, or to allow an institution to consider items for purchase and then forget to retrieve them.  (I wonder if this happens aften Antiques Roadshow visits?)  The law can also establish title to donations made years ago for which the documentation has been lost.

In Wisconsin, the property must be abandoned or orphaned for 3 years or longer.  It requires that a good faith effort has been made to contact the person who left the material so, again, make sure there's a written record of what has been done.  

Judy Turner
Whitefish Bay, WI


      

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