Orphan works and the diligent search

You buy pictures for a living and one image stops you. A print in a second-hand book, a photograph in an archive box, a frame pulled from an old film. You want to use it in the UK but you cannot find the person who controls the rights. This article shows you how to check the status, run the search GOV.UK asks for and follow the licensing route it describes.

What counts as an orphan work for a picture buyer?

On GOV.UK, an orphan work is a creative work or a performance that is still protected by copyright where one or more of the right holders are either unknown or cannot be found. For buyers, the examples that matter are photographs and still visual images, but the same definition also covers items such as a diary, a film or a piece of music. The point is practical. You know the item exists, you do not know who can say yes, and you cannot treat the gap as permission. That gap is why the licensing scheme exists. It gives you a lawful way to copy the work for use in the UK when the owner cannot be traced, whether your planned use is commercial or non-commercial. The licence you can ask for is non-exclusive, can last up to seven years and can be renewed.

Why does copyright status come first?

Before you apply, you are asked to check that the work you want to copy is still in copyright. If it is not, you do not need a licence to use it. This step sounds simple, and it saves buyers a lot of wasted effort. Old photographs, unpublished letters and inherited slides often sit close to the end of term, and a date on the back of a print can change the answer. Your job is to look for dates, credits, stamps, negative sleeves and any information about the photographer or the studio. When you work on checking image provenance, you build the same habit. You keep what you found, you note what is missing and you do not guess the term. If the work has left copyright, you can proceed without the orphan works route. If it is still protected, you stay inside the process and you keep a record of why you think so.

Do you need permission at all?

GOV.UK also asks you to check whether your use falls within one of the exceptions to copyright. Exceptions let people use protected works in defined situations without a licence from the owner. A picture desk often meets this question with editorial cuts, quotations, parody or private study, but the labels do not decide the outcome by themselves. What matters is the purpose, the amount used and the way the image is presented. Read the exception in full, compare it with your layout, your headline and your distribution, and keep a note of your reasoning. If your design team already knows the difference between rights-managed and royalty-free deals, this is a different test. It is not about the price model. It is about whether the law already allows this exact use. If it does, you do not need an orphan works licence. If it does not, or if you are unsure, you continue toward a search and an application.

What does a diligent search look like for images?

The core of the system is a diligent search for right holders carried out in line with guidance published by the Intellectual Property Office. GOV.UK points you to an overview for applicants and to diligent search guidance plus checklists that you complete, convert into one PDF document and upload with your application. For a photograph or a still visual image, you also upload an image of the work itself. Think like a picture researcher. Start from the object, then widen the circle. Record the name or pseudonym if you have one, the title or caption, the date and place of first publication, the agency or publisher named on the credit, and any reference numbers. Then search registries, library catalogues, trade bodies, collecting societies and back issues where the picture may have appeared. Contact the likely holders of archives. Keep copies of letters and emails, with dates, because the Intellectual Property Office will check that the search was adequate. A thin search with two quick queries will not help you. A dated file that shows where you looked and what came back puts you in a stronger position.

How does the UK licensing route work?

When your search is done, you complete the online form to license an orphan work. The detailed rules on applying for orphan works permission sit on GOV.UK, with the register and the forms in the same place. The cost has two parts: an application fee and a licence fee. The fees are calculated and shown at the start of the online application before you decide whether to go ahead, and the amount depends on how many different works and uses you want to license. You pay the application fee when you submit the application, and it is non-refundable. You do not pay the licence fee at that stage. Payment can only be made by credit or debit card. In some cases the licence fee is set on a price-on-application basis. If the use you want is not listed on the online form, you are asked to contact the Intellectual Property Office at [email protected] for details of the fee. For buyers, this structure shapes the request. Each extra crop, format or distribution channel can count as a use, so list your works and uses with care before you submit.

What happens after you send the application?

The Intellectual Property Office lets you know by email that it has received your application. It considers the file, including whether an adequate diligent search has been made, and it adds certain details of your application to the orphan works register. You can search that register for applications, for licences that have been granted and for applications that have been refused. The stated aim is to contact you about your application within ten working days, although GOV.UK notes that this may not always be possible if the application is complex or involves a large number of different works with different right holders. For a picture desk, the lesson is to file early. A book cover with one unattributed photograph moves faster than a supplement with forty loose prints from different decades. If your deadline is fixed, build the ten-day aim plus extra time for questions into your schedule and keep your search file open so you can answer quickly.

How do you stay compliant when permission is granted?

If the application succeeds, the Intellectual Property Office asks whether you want to proceed with all the works and uses you requested. You can remove works or uses at this stage. If you want to add works or uses, you need to submit a new application. The office also sends the terms and conditions for the licence, with standard terms included in the overview for applicants. When you decide to go ahead, you pay the licence fee, which varies with the type of orphan work and what you want to do with it. Each time you use the work, you provide contact details for the Intellectual Property Office, you include the orphan works application number, and you credit the right holder if you know the name. Those three lines sit beside the image in print or on screen, and they tell the missing owner where to find the file. GOV.UK is the government site that publishes the Copyright orphan works guidance. It explains how to get permission to copy a work where the holder cannot be found, it holds the public register of applications and decisions, and it provides the overview, the diligent search guidance and the online form. Open the register before you commission design work and shape your search around what it shows.