RAQs: Recently Asked Questions

Topic: Yearbook Photo Copyright - 1/2/2020
We are putting together a commemorative calendar as a fundraiser to celebrate the library's 90...
Posted: Thursday, January 2, 2020 Permalink

MEMBER QUESTION

We are putting together a commemorative calendar as a fundraiser to celebrate the library's 90th year. We're using old photographs that the library has and also photographs from old yearbooks. Is there an issue with copyright infringement in doing this?

WNYLRC ATTORNEY'S RESPONSE

Before sitting down to write a "one size fits all" answer, I gave the member a call to discuss this project.

What happened on the call? I can't tell you; it's confidential.  BUT, I can say that to give any advice, I had to ask the following questions:

  • What years are the yearbooks from?
  • Are you using portrait shots, or candid shots that might have been taken by teachers and/or students at the school?
  • Are you selling the commemorative calendar?  How do people obtain a copy?
  • Are you including additional information, commentary, and analysis of the photos in the calendar?
  • Is there any sensitive content?

These questions were asked in order to 1) assess the if the photographs were protected by copyright; 2) assess the ability of the library to make a "fair use" defense for using them; and 3) probe for any legal sensitivities possibly related to the content.[1]

This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues.  For this reason (and because old hairstyles are eternally amusing) yearbook projects are hot right now: the focus of many digitization initiatives, and the cause of many numerous scandals-in-retrospect.

Yearbooks are also getting a good showing in copyright case law these days.  The most recent[2] is Dlugolecki v. Poppel,[3] a lawsuit over two yearbook photos of actress-turned-duchess Meghan Markle (a headshot and a group photo), taken when the future royal was in high school. 

Dlugolecki shows the "worst-case scenario" answer to the member's question.  In this case, when "Good Morning America" and other ABC shows used his photos in their coverage of Ms. Markle's rise to royalty, professional photographer John Dlugolecki sued ABC (and others). 

His claim?  That by re-using the printed yearbook photos he shot in the '90's, ABC (and others) infringed his copyright via broadcast in 2017. 

The case was brought in California and heard before the Honorable George H. Wu.  It settled[4] on December 11, 2019, but not before ABC made--and lost--a preliminary "fair use" defense.  Judge Wu, applying the fair use "four factor" analysis set by Section 107 of the Copyright Act,[5] found that even though the photos hadn't been registered by photographer Dlugolecki prior to their use by ABC, the undisputed facts of the case (his photos were clearly used in the broadcasts) could warrant a finding of infringement.

Now, a commemorative calendar by a not-for-profit library is not the "Good Morning America" show.  But as we can see in Dlugolecki, yearbook photos can get protection just like any other copyrighted medium, and re-use might not be considered fair use.   Which means that under the right circumstances (including if the copyright holder is motivated enough), a problem could arise for unauthorized use of yearbook content.

So, the answer to the member's question is: yes, there can be an issue.  Because of that, careful planning, and if possible, working with a copyright attorney, is the way to approach use and re-publication of photographs from a yearbook.



[1] I asked about “sensitive content” not to suggest it be expurgated, but to offer legal guidance on presenting it properly (although I doubt “sensitive content” would be selected for a commemorative calendar).

[2] I am writing this in January 2, 2020; my first work of the New Year!

[3] Decided in United States District Court for the Central District of California on August 22, 2019 (CV 18-3905-GW)(GJSx).

[4] Cases like this often settle.  While this is very frustrating for attorneys conducting research (who like to read findings and judicial opinions), it is no doubt lucrative for the plaintiffs, and an act of risk management for the defendants.

[5] https://www.copyright.gov/fair-use/more-info.html

 

Tags: Copyright, Yearbooks

Topic: Copying Yearbooks - 5/25/2018
A member asked about a request for the library to provide copies of photos from yearbooks for a cl...
Posted: Friday, May 25, 2018 Permalink

MEMBER QUESTION

A member asked about a request for the library to provide copies of photos from yearbooks for a class reunion.

WNYLRC ATTORNEY'S RESPONSE

One of the reasons I enjoy doing “Ask the Lawyer,” is the diversity of questions, and the often esoteric subjects I get to research as a result.  This question is a prime example.

While the liability for copying copyright-protected yearbook photos is, in theory, the same as copying any other published, commercially-generated or amateur picture, I always like to check and see if the specific circumstances in the question have some directly on-point case law. So when this question came through the pipeline, I hit Lexis-Nexis® to search for cases of “yearbook infringement.”[1]

Well.  I found:

  • A first amendment case involving a high school senior suing to include a statement describing a state-sanctioned execution on her yearbook page[2];
  • A copyright case involving a person who laboriously compiled yearbook photos of famous graduates from a variety of New York City high schools, only to find his work replicated by another publisher[3]; and
  • A truly horrific case involving a prank, jail time, and a photo of a person’s genitalia making it into the yearbook[4].

What I didn’t find was a string of case law based on simple copying of yearbook photos for non-scholarly or non-journalistic reasons, like promoting reunions, which is the nuance posed in the member’s question.  But I suspect that is because when a claim based on such an action is threatened, if it has any teeth, it is quickly settled.  Insurance carriers do not like litigation.

So, when your library gets a request for a might-still-be-protected yearbook photo, does it mean the request must be denied?  No.  Remember, if the use is non-commercial, and the other criteria are met, libraries can make copies under Copyright Act Section 108.  Further, Under Section 107, patrons can make the copies themselves, and can claim fair use.  But like with all things copyright, the devil is in the details.  It all depends on the basis for the request, and the amount of content used.

Where must we draw the line?  Somewhere between these two examples:

Example #1: A patron has requested the library copy a yearbook pages featuring Timothy McVeigh for use in coverage related to the Oklahoma City bombing.  That person could get both a 108 copy, and a copy under fair use.  This is especially true if the image selected actually showed it was from the yearbook, and was included as part of an essay, book, or documentary exploring the roots and reasons for the actions of a domestic terrorist. 

Example #2: A patron has requested the library make copies of the individual photos of 100 less notorious graduates to promote Starpoint High School’s Class of ’86 reunion on Classmates.com.  That request would not have that same protection at Example #1.  If the original photographer or their heir could show it was an infringement, they could claim damages (even if the photo’s copyright wasn’t registered), and the library could find itself without a defense.

So how does a librarian deal with this type of request?  As always, help the patron get access to the information they need, but protect the library.  If the request is in person, once they have been given access to the book, your job is done (don’t help them with the copy machine).  If the request is remote or inter-library, and you know they plan a purely commercial use, you can’t make that copy.  This might be perceived as harsh—the requester is probably just a volunteer trying to organize a simple good time! –but you can let them know that the request they made exceeds your authority[5]

Bear in mind, it’s 2018. If they access or check out the yearbook and take pictures with their phone without your assistance, that is not something the library can control, nor be held responsible for. The patron themselves might have liability, but your institution will not…unless your library is part of the school organizing the reunion, in which case… seek back-up!

Please note: this highly restrictive answer has nothing to do with the fact that somewhere in the Town of New Hartford, NY, there is a picture of me in a Def Leppard t-shirt with 80’s hair.

 


[1] This is not a paid commercial endorsement of Lexis.  It’s just the service I use.  But for the record, I have preferred it since law school, where “Lexis or Westlaw?” is the equivalent of “Coke or Pepsi?”

[2] Stanton v. Brunswick School Dep’t, 577 F. Supp. 1560 (January 23, 1984). She won!

[3] Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309 (June 4, 1999).  He lost!  (Not enough original content in his work). 

[4] Granger v. Klein, 197 F. Supp. 2d 851 (March 29, 2002).  Josten’s got an early dismissal of most of the claims. 

[5] Unless you are a member of Congress and can introduce legislation to change the Copyright Act.

 

Tags: Copyright, Digital Access, Digitization and Copyright, Yearbooks, Photocopies

Year

0

2016 4

2017 24

2018 29

2019 42

2020 51

Topics

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ADA 7

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Copyright 69

COVID-19 35

CPLR 4509 3

Crafting 1

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Defamation 1

Derivative Works 3

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Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 33

Employee Rights 7

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Executive Order 3

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 5

First Amendment 1

First Sale Doctrine 3

Forgery and Fraud 1

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IRS 1

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Overdrive 1

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Photocopies 15

Policy 28

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The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.