A member asked about a request for the library to provide copies of photos from yearbooks for a class reunion.
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.”
Well. I found:
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.
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.
 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?”
 Stanton v. Brunswick School Dep’t, 577 F. Supp. 1560 (January 23, 1984). She won!
 Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309 (June 4, 1999). He lost! (Not enough original content in his work).
 Granger v. Klein, 197 F. Supp. 2d 851 (March 29, 2002). Josten’s got an early dismissal of most of the claims.
 Unless you are a member of Congress and can introduce legislation to change the Copyright Act.