Image Rights

We at [redacted higher ed institution] are considering digitizing our past yearbooks and storing them in an institutional repository which has the option of materials being password protected or available publicly. We are also considering using these photos in future advertising materials.

We have had a lot of questions about yearbooks over the years of Ask the Lawyer.[1]  We'll answer this submission with the understanding that for those who want further and deeper information, there's more to read in the "ATL" vault.

This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?

This question needs to be answered on a sliding scale.

Here are three scenarios to show how the scale can slide:

Scenario 1: "Scrapbooking"

Our historical society produced a documentary about the making of a sculpture. Our videographer filmed work in the sculptor’s studio and in so doing, in the background captured photographs the sculptor had on a storyboard for another project. Is it necessary to obtain permission to use the individual’s image, even though it was not prominent nor the subject of the documentary?

When people see a lawyer to complain about the misuse (or “misappropriation”) of their image, there are several legal theories that lawyer might assess the situation for, including:

My concern is about employee privacy and image use.

This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!

To give some useful answers, and also stick within our word limit:

Our local public library has started a collection of donated yearbooks from the high school. They requested to receive or purchase new yearbooks as they were published. As the yearbook contains underage students, information about their sports and clubs, we felt that this was protected personal information and should not be publicly accessible.

I appreciate the care behind this question: when yearbook information is being assembled, not many people are thinking about all the places the publication could potentially go.

Are libraries legally required to obtain photo releases from all patrons (children's parents, teens, adults), even if we don't name those patrons before publishing photos to our social media accounts and/or press releases?

This is a huge question.  To answer it, let’s start with where the mania over image releases comes from.

New York Civil Rights Law, §50, states:

We are in the process of transferring old VHS tapes to DVD and then to a secure internet cloud. 

Putting the tapes on the cloud: it is great that educational institutions are saving and promoting their accumulated knowledge this way.  But aside from the copyright issues the member asks about (which we’ll get to at the bottom of this reply), the transfer and publication of legacy instructional material[1] can bring some additional

[I work at the library of a public university.] Every year we have requests from students in Media Arts program to videotape in the library. They ask me to grant permission. I do not feel comfortable granting permission for others to be filmed.

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

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?

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:

Recently, our library has been given a collection of photographs that were previously on display in a local business location. These are photos of the customers of the business, many are children. These photos span several decades and are important to many. 

To answer the member’s questions, we must start with the fundamentals.

When accepting a donation of culturally significant photos, an archive should have a donor agreement or other documentation that addresses the following things:

Does the donor solely own the physical photos?

Is physical ownership being given to your institution?