The Mystery Photographer Problem: Understanding orphan works
Picture this: you’re scrolling on your phone at midnight when you see a haunting black‑and‑white photo on some obscure blog – a kid on a rusty bike, storm clouds, perfect rule‑of‑thirds, the whole thing practically begs to be the hero image of your next exhibition.
This is it - the one you want.
You click around, zoom in, check the URL, but there’s no name. There is no credit, no way to work out who took it.
You’ve just met an orphan work.
In copyright‑speak, an orphan work is something that’s still protected by copyright, but where you can’t identify or locate the owner, even after doing a sensible search.
Photos are especially prone to being orphaned because metadata and watermarks get stripped as images are uploaded, shared, re‑saved and re‑posted across the internet.
That gorgeous image on might have started life as a carefully credited shot in an Australian photographer’s portfolio; by the time you find it on a random Tumblr, it’s just “cool bike pic.jpg” and the author has effectively vanished.
For photographers, this creates a weird double bind.
So, what do you do?
On one side, your own work can quietly turn into an orphan without your consent – metadata lost, credit removed, your name detached from your images. On the other, you constantly see images you’d like to license, be inspired by, or re‑use legitimately, but you have no one to ask.
Use it without permission and you risk infringement.
Leave it alone and it sits in limbo as it is legally untouchable.
It’s still protected by copyright, which means you need the owner’s permission to use it.
If you can’t work out who owns it or how to contact them, you have no one to ask for that permission or to pay for a licence. There also isn’t a simple “free use” rule that lets you safely rely on the law instead.
So even though the image is sitting there on your screen, you can’t confidently copy it, publish it, or build work around it without the risk that, one day, the real owner may appear and claim you’ve infringed their rights.
Australia has been particularly cautious (some would say stuck) on this.
For years there’s been no dedicated orphan works exception or licensing scheme in our Copyright Act.
If you wanted to use an uncredited photo you found online – for a book cover, gallery show, client project or website – your options were: track down the creator through detective work, shoehorn the use into a narrow “fair dealing” exception, or roll the dice and hope the owner never appears waving a lawyer’s letter.
Unsurprisingly, many galleries, publishers and even cautious freelancers simply avoided these works altogether.
To take another scenario, if you are a photographer and you are inspired by an image you find online that has no author details, you are stuck in an awkward spot. You might want to license that original image, or at least get clear permission to use it as a strong reference for a commissioned shoot, a composite, or a series, but you have no idea who to ask or what terms apply.
Because the image is still likely protected by copyright, you cannot safely treat it as “free to use”, and you cannot negotiate a licence fee, usage rights or model/property releases with a mystery owner.
In practice, that means you either have to create something clearly different enough to avoid copying the original expression, or walk away from using that particular image as a direct foundation, because you simply cannot get a proper licence for it.
Changes are coming
Enter the Copyright Amendment Bill 2025, which promises Australia’s first formal “orphan works” scheme.
The basic idea is not to declare these works free for all, but to limit what a court can do to you if you’ve used an orphan work after following a set of rules.
Think of it as: “You can use the image if you’ve been careful and honest, and if the mystery photographer eventually shows up, you won’t be financially incinerated – but you may have to pay them something reasonable.”
So what does being “careful and honest” look like for photographers and people who work with images? The Bill and commentary around it talk about a “reasonably diligent search” for the owner.
In practice, that could mean using reverse image search tools, checking major stock libraries, looking for embedded metadata in earlier versions of the image, searching photographer directories, asking relevant industry bodies, and keeping a written record of everything you tried.
You would need to do this close in time to when you actually use the image, keep your notes, and include a clear notice saying you’re using the work under the orphan‑works scheme because you couldn’t find the owner.
If, two years later, the original photographer discovers their picture on your book cover or website, under the proposed scheme, they can ask for “reasonable payment” for the past use, and you can either negotiate terms to keep using the photo or stop.
Courts would have power to set fair conditions and may still grant an injunction in some cases, but the idea is to get an invoice.
Why should Australian photographers care?
First, the scheme may unlock the use of vast archives full of unattributed or half‑attributed imagery – from cultural institutions to local historical societies – that could now be licensed or used in new creative projects with less risk.
That might mean more commissions, more context for your own work, and more opportunities to have your images legitimately re‑used rather than quietly copied.
Photographs are especially easy to lose the name of the person who took them, because once they’re shared online the credit and file details often get stripped or changed.
By pointing this out, it might be possible that the new scheme could push everyone – photographers, clients and websites – to be more careful about keeping credits and metadata attached to images, so it’s easier to see who took a photo and fewer images end up with “owner unknown”.
There is, of course, a nervous question lurking in every photographer’s mind: does this make it easier for people to use my work without paying me?
The government’s line is that the scheme balances access with protection – it only helps users who can show they really tried to find you, and it keeps the door open for you to step in later and get paid.
Photographer groups and arts bodies will be watching closely to see whether “reasonable payment” ends up looking like fair compensation.
Will the scheme actually come in?
The Bill has been introduced with strong rhetoric about unlocking cultural and creative material and bringing Australia into line with places like the UK and EU, which already have orphan‑works mechanisms.
Governments don’t usually spend political capital drafting this sort of niche legislation just for fun, and cultural institutions have been lobbying for it for years, so there’s a decent chance some version of the scheme will pass but we don’t as yet know when.
For now, the practical takeaway is this:
Keep the information attached to your photos as clean and complete as you can – things like your name, contact details, copyright notice and, where relevant, client or usage notes. That makes it much less likely your images will float around the internet with no way for people to know who created them or how to license them.
When you do find an uncredited image you’d love to use, you need to think about what a sensible “diligent search” looks like: reverse image searches, checking major photo libraries, looking for earlier versions with credit, and keeping clear records of what you tried and when.
The new orphan‑works scheme is not a free pass to grab any image you see online. It is more like a structured safety net that may make it possible, in some cases, to use “owner‑unknown” material without facing ruinous legal consequences, as long as you’ve been careful and honest.
In a world where photos are constantly copied, reposted and stripped of credit, even a cautious, rule‑based way to unlock some of that material is a step forward.
Sharon Givoni Consulting can help photographers and image‑based businesses with each part of this picture. We can review and improve your contracts, website terms and workflows to protect your rights, advise on practical use of metadata, guide you on when online images are too risky or may be usable (including under any orphan‑works scheme), and help if your own photos are used without permission, from initial letters through to negotiating licences or taking things further.
Disclaimer: This article is for general information only and is not intended as legal advice. Every situation is different, and the law may change over time. If you have specific questions about copyright, AI, or your photography practice, you should seek advice from a qualified lawyer.
About the author: Sharon Givoni is a practising intellectual property and commercial lawyer in Australia and the author of the best-selling book Owning It: A Creative’s Guide to Copyright, Contracts and the Law. Her law firm, “Sharon Givoni Consulting”, advises photographers in all areas of the industry—from portrait and fashion to wedding, editorial, and wildlife photography.
Sharon also drafts custom terms and conditions for photographers. E info@iplegal.com.au Phone 0410 557 907
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