I want to use someone’s artwork – but can’t track down the artist

Credit: Paulina Herpel

I want to use someone’s artwork – but can’t track down the artist

What do I do?

In Australia, the basic rule is this: if copyright is still in force for a photo, you usually need the copyright owner’s permission before you copy it, publish it, or change it, unless a specific exception in the Copyright Act 1968 (Cth) applies (for example, the limited “fair dealing” exceptions in sections 40–43).

If you take an uncredited image you found online and use it on your website, for a client project, a book cover or a marketing campaign without that permission, you may be infringing copyright, which can lead to demands to take the image down, pay a licence fee, and in more serious cases, pay extra compensation (additional damages) under sections 115 and 116 of the Copyright Act.

Leading on from this, what we can say is that you’re not alone if you’ve ever found the perfect image online, only to realise there’s no name, no contact and no way to license it properly. That “mystery photographer” problem is exactly what lawyers call an orphan work – a photo that is still protected by copyright, but where the owner can’t be identified or located even after a reasonable search.

In other words, while these reforms sound helpful, they can actually make things more complicated, not simpler.

The proposed orphan-works rules in the Copyright Amendment Bill 2025 (Cth) are not a free pass to use any uncredited image or artwork you find online, because you still need to show you did a genuinely careful search (and what counts as a “reasonably diligent search” will depend on factors like whether your use is commercial and how visible it is), and if you cut corners – for example, only doing a quick search, keeping poor records or misunderstanding how key parts of the Copyright Act 1968 (Cth) (such as the “fair dealing” exceptions in sections 40–43, the remedies provisions in section 115, the rules on technological protection measures in Part V, or the “authorisation” concepts that can make businesses liable for third-party infringement) apply to your situation.

What is changing with orphan images?

Under the Copyright Amendment Bill 2025 (Cth), the new orphan‑works rules would not make “mystery” images free to use, but would limit what a court can order against you if you use an orphan work and follow certain conditions set out in a new Division 2AAA of the Copyright Act 1968 (Cth).

In practice, you would need to show you did a “reasonably diligent search” for the owner (for example, reverse‑image searching, checking major image libraries, looking for earlier credited versions, reviewing any metadata, contacting relevant organisations and keeping clear, dated records), and you would also need to include a clear notice with the work saying you could not locate the owner and are relying on the orphan‑works scheme.

If the photographer later comes forward, a court can still order you to make a “reasonable payment” and, in some cases, to stop or change the use, but the idea is that you are not treated in the same way as someone who simply copied the work without trying to do the right thing.

Why you shouldn’t try to be your own copyright lawyer

Copyright law in Australia is complicated, and it’s easy to get small but important details wrong. The rules in the Copyright Act 1968 (Cth) – and changes in the Copyright Amendment Bill 2025 (Cth) – decide things like whether a work is still protected, whether an exception applies, and what counts as a “reasonable” search for an owner. If you just guess, copy what others do, or rely on what you’ve heard online, you can accidentally step outside these rules and be treated as someone who has simply infringed copyright, which can mean take‑down demands, back‑dated fees and in serious cases extra compensation. Getting proper advice from a copyright lawyer helps you use or protect creative work with much less risk.

How we can help

At Sharon Givoni Consulting, we help photographers, agencies, galleries and businesses deal with these copyright questions so you don’t have to work it out on your own. We can look at how you find and use images, help you put in place simple “diligent search” checklists and record-keeping steps, and tell you when an image is just too risky to use, even under an orphan-works style scheme.

We also help rights-holders with contracts, website terms, watermarking and attribution so your own images are less likely to turn into “orphans”, and we can step in quickly if your work is used without permission, from the first letter through to negotiations and, if needed, court action.

If you’re looking at the “perfect” uncredited image and asking yourself “Can I use this?”, that is the moment to pause and call us before you hit upload – getting clear legal advice at the start is almost always cheaper and safer than trying to fix a copyright problem after it arrives in your inbox.

Further reading

For a more in‑depth, photographer‑focused explanation of orphan images and the proposed reforms, you can read Sharon’s article “The Mystery Photographer Problem: Understanding orphan works” on Australian Photography (31 March 2026): The Mystery Photographer Problem: Understanding orphan works – Australian Photography

This guide is for you if:

• You are a photographer worried your images will be used without permission or credit.
• You run a creative business, agency or studio and regularly pull images from the web, archives or client-supplied material.
• You are a marketer, designer, social media manager or in-house communications lead who needs “just one more perfect image” on a deadline.
• You work in a gallery, museum, educational or not-for-profit setting and handle historic or unattributed collections.
• If you’ve ever thought “I don’t know who took this photo, but it looks perfect for my project”, this article is written for you.

The “orphan work” trap in plain English

An “orphan work” is a creative work – like a photograph – that is still protected by copyright but where the copyright owner can’t be identified or located, even after a sensible search. In practice, this is common with images that have been reposted, renamed or stripped of metadata so many times that the photographer’s details have vanished.

Under the Copyright Act 1968 (Cth), copyright usually lasts for the life of the photographer plus 70 years, and using a photo without permission can be infringement unless a specific exception (such as the fair dealing provisions in sections 40–43) applies. If you simply grab a mystery image for your website, campaign, book cover or client work, you may expose yourself to removal demands, back-dated licence fees and, in serious cases, additional damages under provisions such as section 115. Australian courts have repeatedly treated unauthorised online use of photographs as a serious matter, particularly where commercial benefit or deliberate conduct is involved.

What the new orphan-works scheme is trying to do

The Australian Government’s Copyright Amendment Bill 2025 (Cth) proposes our first formal orphan works scheme. The idea is not to declare mystery images “free”, but to limit the remedies a court can award against you if you used an orphan work after taking specific steps. The Bill would insert a new Division 2AAA into the Copyright Act to set up this framework.

To rely on the scheme, you’d need to show that you conducted a “reasonably diligent search” before using the work, such as: reverse image searching, checking major libraries and stock sites, reviewing earlier versions and any available metadata, contacting relevant bodies, and keeping detailed, dated records of what you tried. You must also include a clear, reasonably prominent notice stating that the owner could not be found and that the image is being used under the orphan works scheme. If the photographer later appears, they can seek “reasonable payment” and, in some situations, a court may still order you to stop or adjust the use.

Law reform bodies and government materials have long recognised that orphan works affect many sectors, from publishers and educators to galleries and technology companies, and that a structured scheme can unlock access while still respecting creators’ rights. However, the detail matters: what counts as a “reasonably diligent search”, how notices should look, and what “reasonable payment” means will be refined through legislation, guidance and, over time, case law.

Don’t be your own copyright lawyer

It’s tempting to treat the proposed scheme as a green light – “as long as I look a bit and keep notes, I’m fine”. In reality, it is more nuanced. What’s “reasonable” will depend on who you are, how you’re using the image, and the risks involved; for example, a national campaign or large print run will likely demand more rigorous searches and documentation than an internal staff newsletter. Get this wrong and you may fall outside the scheme entirely, leaving you exposed under the standard Copyright Act provisions.

Put simply: this is not an area where a quick Google and a screenshot will safely replace proper legal advice.

At Sharon Givoni Consulting, we can:

• Develop policies for handling “owner unknown” images, including when to walk away.
• Design and document “diligent search” processes that meet the emerging orphan works standard and are realistic for your workflows.
• Tighten your contracts, website terms and internal practices so your own photographs are less likely to become “orphans” in the first place.
• Act fast if your images are used without permission, from initial letters through to negotiation and, where needed, litigation.
• The key message: don’t try to be your own copyright lawyer. Ask us before you use that mystery image, rather than after you receive a legal letter.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.