Submission Date:
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?
Answer:
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
Tag:
Copyright, Yearbooks, Digitization and Copyright, Image Rights
