Can I Indemnify Library For My Use of Orphan Work?

Dear Rich: I'm looking at a pre-1989 (orphan) work, author deceased, with no copyright notice in the text and no copyright in evidence at publicrecords.copyright.gov. Someone associated with the organization that published the work tells me it was intended to be a public document. The library where it resides (reasonably, from what I understand) is leary of having the work scanned and put up on archive.org. Is there some way the library can be indemnified? Is that even a thing? Yes, you can offer to indemnify the library. An indemnity agreement is like a shield, shifting the financial risk of certain claims from one party to another. Depending on how it is drafted, it may require you (the indemnifying party or "indemnitor") to defend the library (the "indemnitee") against copyright claims and to pay settlements, judgments, and litigation costs. 

This presumes that copyright protects the work, that (1) someone claims copyright ownership (for example, the author's estate), (2) they are aware of your copying, and (3) they can afford to sue. For example, if the work was first published in the United States before March 1, 1989, without a proper copyright notice, copyright may have been forfeited, unless one of the statutory savings provisions applied (for example, corrective registration and notice or other exceptions). Without copyright protection, you're free to exploit the work without any limitations. 

As for the absence of a copyright registration, it does not, by itself, affect whether copyright exists. However, registration is generally required before filing an infringement lawsuit for a U.S. work, and failure to register before infringement (or within the statutory grace period after publication) generally precludes recovery of statutory damages and attorney’s fees.

Another question i s whether the author (or author's estate) owned the copyright or whether the organization owns it as a work made for hire or by assignment. Finally, will the library accept your offer to indemnify? If the library questions your financial ability to pay for a lawsuit, it may not be willing to enter into an indemnification agreement. A sample indemnity provision might look like this:

Indemnity. [Your Name] (the "User") shall indemnify [Library name] (the "Library") and hold the Library harmless from any damages and liabilities (including reasonable attorneys’ fees and costs), arising from User's use, reproduction or distribution of the following work: [insert title of work] (the "Work") provided (a) such claim arises solely out of User's use, reproduction, or distribution of the work: (b) Library gives User prompt written notice of any such claim; (c) such indemnity is applicable only in the event of a final decision by a court of competent jurisdiction from which no right to appeal exists and [optional] (d) that the maximum amount due from User to Library will not exceed [$______ indicate cap on indemnity].