Yearbooks

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.

Regarding the yearbooks: Unless an institution hired an outside agency to compose the yearbook, the copyright to the complete book is owned by the school, which is most likely free to digitize or otherwise make copies of the books as a whole.[2]  However...

Regarding individual images/photos: If any images were generated by an outside[3] professional, they are likely still owned by that professional (or their heirs), which as the question alludes to, could complicate creating and using them.  In addition....

Regarding the images of former students: In New York, the use of a person's image for commercial purposes requires written permission.[4]  The law also requires permission to use the images of deceased people if they qualify as a "personality" (basically, a famous graduate).  So...

That means that for the uses described in the question, limiting liability is a 2-step process:

1.  Assess if the photos are still protected by copyright, and if they are, secure appropriate permission.  This can be tough, since the individual images will likely not be credited, and finding the original contract or documentation will be hard.  Further discussion of this step is below.

2.  Ask the former students for permission to use their image (an "image release").

This can be done in a way that is fun, simple, and reinforces the students' connection to the institution.  Here is a sample way to ask for a release:

Dear NAME:

[insert customized nice things from your institution as a greeting.]

We are reaching out to you in the hope that you will grant your permission to [SCHOOL NAME] to use this image for student recruitment and to promote awareness of [SCHOOL NAME]'s mission.  This means your name, and the picture we're including, would be in advertisements for [SCHOOL NAME].

If you agree, please sign below.

NAME, we appreciate you considering this request.  In addition, if you believe any of your classmates would be excited to help us out this way, please let us know!  [SCHOOL NAME] is always seeking ways to reinforce our connections to our alumni, while we also reach out to the alumni of the future.

[insert customized nice things in closing]

[signature]

LIMITED PERMISSION TO USE NAME AND IMAGE

This form can be signed and returned in the self-addressed, stamped envelope provided, OR a photo of the signed document may be taken and the image sent to INSERT EMAIL, whichever is easier for you.  If you send the document via email, please send your preferred telephone number for confirmation. 

Thank you for granting [SCHOOL NAME] this permission.

On this _____ day of _____________, ______, I, [PRE-INSERT NAME], agree that [SCHOOL NAME] may use my name and the above likeness for purposes of student recruitment and to promote awareness of [SCHOOL NAME]'s mission in any print medium, on the school's website, and in electronic advertising.

I appreciate that I can withdraw this permission and upon so doing, the school will immediately remove my name and image from the school's website, and from any advertising (print or electronic) as soon as the duration of the advertising contract expires.

SIGNATURE: ____________________________

Okay, that's the "image use" concerns.  Now, back to the copyright.

For professional photographers, the copyright to their images is part of their livelihood, so I very much appreciate that the member is thinking about that factor.  For amateur photographers who may have supplied their work, they are owners too, but ownership of the photo may have even fewer clues.

There are a few approaches to determining copyright ownership of "old"[5] yearbook photos.

To determine copyright ownership of "old" yearbook photos, you have to play detective.  Places where you may find "clues" about ownership include:

• The credits of the yearbook
• Old files from the yearbook committee
• Procurement/purchasing records from the school's business department[6]

The best documentation related to professional portrait photos is usually an old contract or invoice, since the ownership and permission to use the photos--if ever confirmed in writing--would likely be there.

If you are lucky enough to determine the photographer, but not the terms under which they worked, if they are still alive (or the business is still in operation) you can reach out to them for permission (bear in mind, they could say no, and you may need to negotiate for a reasonable fee).

If your institution can't locate ANY information on the photographer, it has a choice: don't use any of the images; OR use the images knowing there is a risk of infringement, and limit that risk by engaging in "risk management."

"Risk management" includes:

• Using images taken before 1927, since those are most certainly not protected by copyright;
• Using the oldest images that can suit your institution's purpose, since the older the image, the less likely it is that there is a person or estate monitoring use of the photos and waiting to claim you need permission to use them;
• Avoid using images of "famous" alumni, since photographers who know they once photographed a famous person during their freshman year, often recall that fact, and know they are sitting on a goldmine;
• Documenting your search for records related to ownership, so you can show the institution made a good-faith effort to locate the owner.

With all that said, the quick answers to the member's questions are:

Question 1) There is no one way or "best practice" to determine post-1927 copyright status, but there are many ways to look for clues, and many of them can be used to reduce or eliminate potential liability for copyright infringement;

and

Question 2) Yes, if an academic institution is going to use photos of former students for advertising, it MUST get written permission from the person depicted.

Thank you for sending in these thoughtful questions!

[1] See “Ask the Lawyer” yearbook-related questions on FERPA; Request to remove scanned pages; Photo Copyright and Copying

[2] The exception to this is if permission to use the photos was limited to one print edition.  Contracts for yearbooks post 1995 (or so) may limit this, but "old" yearbook contracts likely will not contain a restriction on the method of the yearbook's duplication.

[3] "Outside" meaning not an employee of the school.

[4] For more on this, see "Ask the Lawyer" here and here.

[5] What age is an "old" yearbook photo these days?  I feel like the moment you open a yearbook and say: "Look at those clothes/hair!" the photos are "old."  So, maybe, pre-2010?

[6] This may seem far-fetched, but some places hoard this stuff.  I love going through those type of records because they showcase the history of printing and document duplication.

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.

Whenever I get a question related to a yearbook, the first thing I do is check my legal research service to see if there are any new yearbook cases[1] in the New York State or federal courts. It's a chance to check on the latest in a niche area of case law, as well as to make sure I am working from the most current information.

Every time I check with the list of cases, I am reminded that while most people bust them out every so often for nostalgia or period-specific hairstyle mockery, one of the most frequent uses of yearbooks in the legal world is the identification of potential criminal defendants.

That's right. There are numerous cases[2] that show that in addition to a police station photo-array and a classic lineup, trotting out the high school yearbook is another way for people to seek out suspects in criminal matters.[3]

All to illustrate the member's very real concern: yearbooks, which can be used to directly and indirectly convey so much information about students, do not remain in school and student hands, and are not used exclusively to travel down memory lane.  They can be given away, they can be sold, and they can end up in police stations...perhaps by route of the public library.

Does that mean the library shouldn't house them?  Not from where I sit, but I do think some reasonable precautions to guard against releasing information about minors could be taken.

Schools[4] who wish to take such precautions can do the following:

1.  Register the copyright of the yearbook to the school.

2.  Include a copyright notice and a "reservation of rights clause"[5] in the published hard copy version, barring duplication for any purpose whatsoever.[6]

3.  Remind (it would be largely ineffective to require) students to keep their copy safe at home[7];

4.  If requested, provide a copy to the public library with the condition that the copy will not be in circulation and certainly not be digitized until a year after the earliest class featured in the book has graduated (i.e., if the books' youngest students are in class of 2030, the book should not be in circulation until 2031);

5.  Ask if the book could always be in a "special collection" that does not leave the library and cannot be scanned[8] (either forever, or until a specific date);

6.  If advertisers or sponsors require a copy of the book, make sure the advertising contract limits their use of the book to things that don't risk the privacy of the students (no leaving the display copy at the bar in the restaurant who bought an ad).

In this day and age, it can seem almost quaint to worry about the risk that over-exposure of yearbooks poses to privacy. But as the member points out, the information that can be gleaned from a yearbook can reveal things about a student's identity, activities, and schedule. Further-although they can of course be forged--in a sea of mis-identified or ambiguous images on social media, a yearbook's status as a school district "official" publication means they are a little more authentic (and thus valuable).

For this reason, a little extra care in how yearbooks are published and distributed is well-warranted, and should be respected by anyone who has asked to take it.

Thank you for a thoughtful question!

****BONUS EXTRA***

Here is a sample yearbook "reservation of rights""

(c) [YEAR] [District Name]

This [insert year] yearbook is a collective work protected by copyright owned by the [insert school district].  Individual images and compositions may be owned by individual authors.  No part of the book may be reproduced in any medium whatsoever without permission of the District.  The names and likenesses of people featured in this publication are protected by the laws of the state of New York.  Inquiries for permission may be directed to [address].

As with all template language, this is just a starting place...review the final with your lawyer before using!

Suggested tags: Yearbook, copyright, school district, digitization, image use, privacy

[1] It's a very sophisticated legal search; I visit Lexis-Nexus, and type "yearbook" into the search bar for state and federal cases, and organize the results "newest to oldest."

[2]For example, see Wagner v. Hyra 518 F. Supp. 3d 613 (NDNY Feb. 10, 2021); Tytell v. AIW-2010 Wind Down Corp., 2019 N.Y. Misc. LEXIS 5412 (NY Oct. 19, 2019); Williams v. County of Suffolk, 2019 N.Y. Misc. LEXIS 5412 (NY Oct. 1, 2019). I would add that cases against genealogy sites like Ancestry.com and PeopleConnect.com are also often yearbook-driven; for an example, see Braundmeier v Ancestry.Com Operations Inc., 2022 US Dist LEXIS 212415 [ND Ill Nov. 23, 2022, No. 20 C 7390].

[3] I am not endorsing this practice, just noting that it exists.

[4] While it will depend on the circumstances, the school will be the owner of the copyright to the yearbook, even if professional photographers and other contributors retain the rights to their original contributions.

[5] This is really just language to warn people off from making non-fair use copies.

[6] Neither the copyright registration nor the notice will be a "magic bullet" that will stop a third party from using yearbook-gleaned information if they are determined to act creepy, but they can help reduce certain opportunities for creepiness.

[7] Maybe include a free ticket to the 80th class reunion, only redeemable if presented intact with the yearbook?

[8] Except to make adaptive copies per the ADA, of course (or to address damage as allowed by 17 U.S.C. 108).

At "Ask the Lawyer," we have tackled "yearbook questions" before: in 2018[1] we addressed patron requests to copy physical yearbooks in a library's collection, and in January of 2020[2] we addressed using scanned yearbook images to illustrate a commemorative calendar. [3]

But I have been waiting for this question for quite some time, and I am sure this scenario has a familiar sound to many readers.

"Yearbook scanning"—the creation of digital versions of yearbooks previously available only in hard copy—has been happening for quite a while now.  However formal or informal such efforts might be, the end result (if made accessible) is a searchable, highly accessible collection of images of people in their formative years[4], who for whatever reason, might see the increased access to their former images as problematic.

Although we don't know the motivation of the person asking the member to remove their name from a digitized yearbook, this scenario shows the apex of this concern: a request to be removed.

At this "apex," a person can make a simple, single request to be removed.  Or, they can be persistent about it--making multiple requests, calls, letters, etc.[5]  Or, if they are available, they can make legal arguments.

I can think of several "legal" arguments a person could bring forward to remove their name from a yearbook in the manner described by the member:

• They are a victim of domestic violence trying to elude an abuser.
• They are a victim of stalking trying to elude their stalker.
• They have specific safety concerns based on the general public's easier access to the content.
• They have legally changed their name and identity for personal reasons.
• They have informally changed their name and identity for personal reasons.
• They feel the use of their image is commercial (not likely if the poster is a not-for-profit library that isn't charging for the content).
• The content is defamatory.[6]
• The content is the result of a crime.
• They have been the victim of identity theft and are attempting to optimize their privacy.[7]

Of course, asking for the "legal reason" a person is requesting removal from a digital, online yearbook puts the library in the uncomfortable position of having to evaluate the validity of the answer.  Let' not go there just yet; instead, let's take a closer look at the member's question:

If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright)[8] does the student have a reasonable request? [emphasis added]

The member has used a very, very important phrase to frame this question: "a reasonable request."

"Reasonable requests"—that is to say, requests that might not have slam-dunk legal footing, but still might be a good reason for removal—cannot be analyzed in a vacuum.  In this context, to determine if a request is "reasonable," it must be assessed against the backdrop of the hosting institution's mission, the purpose of the digital collection, and the values and ethics governing both.

That is why for libraries, archives, museums, and historical societies digitizing old yearbooks and other content that can impact living, breathing people, I advise every institution adopt a policy that 1) confirms that the goal of a digitization project aligns with the mission of the institution; 2) confirms how the content will be accessed (will it be added to the catalog to be checked out as an e-book, or be openly accessible as an online archive? etc.[9]; 3) confirms the ethics applicable to the project; and 4) creates an ethics-informed process for raising, evaluating, and acting on any concerns about the content.

For readers out there working in established archives, this ethical framework for selecting, preserving, and enabling access to archival content is already built into your institution's DNA.  However, for many libraries or smaller institutions that are now able to create online collections of easily accessed content through scanning, either to hold on their own servers, or to contribute to a larger initiative--with access unmediated by a library card or on-site access--it may be an area ripe for development. 

For those institutions just arriving at this phase, here is a short sample policy to govern the creation of digital content intended for open access:

Now, with those essential considerations backing us up, here are my thoughts on the member's questions:

A request for removal or redaction of digitized content should be evaluated against the mission and values of the library that created the digital content, the purpose of the digitization project, and the ethics governing the project.

In this case, if the person requested removal without giving a reason aligned with ethics of the library and/or the project, the request should be denied.  On the flip side, if the reason for the request does align with the relevant ethics, it should be redacted or removed.

Here's an easy example of this playing out in the real world:

Every "Code of Ethics" I have seen governing libraries and archives requires that the institution follow the law.  Therefore, if there is a legal reason for removal, it should be done.

Here's a less easy example of this playing out in the real world:

If the request is more vague, like "I just don't want people to be able to find out information about me,"[11] your institution needs to look at the values and ethics it has adopted.  Does personal autonomy and concern for the privacy of living people get a high priority?  If the answer is "yes", there should be a process for redaction or removal.  If the answer is "no," with more priority placed on the integrity of the material, unless there is a legal reason compelling removal, the answer should be, "Sorry, our role is to preserve and make accessible this record in its original form" (or other language regarding integrity of the records, taken from your library’s Code of Ethics).

Personally, although I don't think my yearbooks have anything to hide, I like the option of being able to remove myself from the record until I am dead.[12]  But in saying that, I am expressing a value, not a legal right, and value judgments are harder than legal conclusions.  That is why requests not rooted in solid legal reasons benefit from: a) the library having a strong, consistent guide, like a Code of Ethics; b) applying that guide consistently; and c) ensuring the library has the technical ability[13] to implement your institution's decisions, which are all critical.

Thank you for bearing with me on this answer, I know it is intricate, and perhaps more than you signed on for!  The steps I lay out in this answer are meant to be practical, easy to implement, and designed to help your library document that it is doing its best to balance preservation and access to documents with consideration of privacy and ethics.  That is no simple balancing act, but since requests like the one sent to the member are only likely to increase, it is a good thing to be ready to do.

[1] RAQ #47

[2] RAQ #108

[3] The reply to the 2020 question, after walking the reader through a suggested analysis of the content, states: "This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues."

[4] For libraries considering creating a formal archive of digitized yearbooks, this "Ask the Lawyer" answer regarding creating digital archives that include images of children discusses the interplay of legal and ethical issues.  Of course, a yearbook presumes a certain level of both awareness and willing participation, which not all images of minors do.

[5] It pains lawyers to hear this, but not every problem is solved by threatening to sue.  Letter campaigns, online petitions, public shaming, reaching out to people in power...these are non-litigious routes to get relief from problems, too.

[6] I don't just mean that the content makes them look bad, I mean it genuinely meets the criteria for defamation in New York, which is very precise.

[7] One thing the information in old yearbooks can do is help with social engineering of scams to defraud and/or commit identity theft.  "Hi, it's me, Angela, from your high school volleyball team!  Remember, with the red hair?  Yeah, it's me! Hey, can you cash a check for me...?"  Yes, this is exactly how it happens.

[8] Just to confirm: this question has nothing to do with copyright (sounds like the library got the right permission to move ahead with digitization), and has everything to do with the "right to privacy," laws barring use of identity-based content, and ethics.

[9] The difference here is critical!  A yearbook that is digitized and available only as an e-book to be checked out by a patron is very different from an open collection that is available to access and search without borrowing privileges.  This is one reason why archivists have different codes of ethics than librarians.

[10] You will note I do not call this content "archival" content.  As every library council member out there knows, libraries are not archives (although they might have some archives).  That said, in this case, the creation of the digital content is likely to end up in an archive—or a collection that functions like one—and the ethical considerations align almost exactly.  For that reason, the Code of Ethics of a body like the Society of American Archivists might be a good go-to for your policy.  It wouldn't hurt to have a professional archivist on board as a consultant for help evaluating concerns, too.

[11] Remember the person faking being on the volleyball team.  This is not an outlandish concern.

[12] I am already ahead on this.  Having a hatred of head shots, I boycotted my senior picture, a decision that only makes me happier as the years go by.

[13] As the member points out, "removal" in this instance poses a challenge.  In this case, it would be good to explore if "redaction" through an addition of a black bar to the PDF, with an appropriate footnote citing the Statement of Ethics, is possible.

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

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.