Copyright and the school yearbook

Next in an occasional series on copyright

We have all been there, done that, those of us who grew up in the United States.

On a day appointed, with black eyes, or braces, or missing front teeth, or hair that won’t behave, or the shirt our mothers detested, or an attitude that couldn’t be repressed, we have sat there on those chairs.

Glaring, staring, sometimes even smiling.

yearbookAnd had our pictures taken for the yearbook.

Only to find, all these years later, that somebody wants to digitize those yearbooks and put them on the internet.

Reader Gary Matz recognizes the genealogical value of yearbooks: any time you nail somebody’s feet to the floor at a particular time and place, it’s a good thing. And yearbooks often offer details about the person’s activities and interests that can’t be found anywhere else.

But when the genealogical library he works with is asked to copy a yearbook from a school or a college, he worries about copyright.

He wonders first if it’s an issue at all. “Since the public schools and colleges are taxpayer supported, can they have copyright or license rights on something they publish?” he asks. “Would private schools and colleges have rights?”

And if it is an issue, what does the library need to know?

As always, The Legal Genealogist offers kudos to Gary for realizing there could be copyright issues here. It’s an issue all too often overlooked. And the fact is, he’s right to be concerned.

First, let’s deal with the question of whether schools can have a copyright.

Simple one word answer: yes.

Doesn’t matter if they’re public or private, doesn’t matter if they get (or got) tax dollars. There’s no provision in the copyright law that says you do or don’t get copyright based on your status as a public entity.

The only provision anywhere in the law that carves out a whole category is in §105 of the copyright statute: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”1

Under that section, any work created by an employee of the United States Government as part of his or her official duties for the government isn’t copyrighted. Note that doesn’t apply to state governments or county governments or — ahem — local school boards or college alumni associations.

So we have to start with the notion that yearbooks are — or were — copyrighted. And that means finding out, first and foremost, if they’re still copyrighted today.

And that’s not always so easy. Copyright law has changed from time to time and there are different rules that apply depending on when the yearbook was published. Let’s take a look at the key categories that are likely to apply to yearbooks published far enough back to have genealogical value:2


Publication Date

Conditions

Copyright Term
Before 1923 None In the public domain
1923 – 1977 No copyright notice. In the public domain
1923 – 1963 There was a copyright notice but it was not renewed as required after 28 years. (Only a few publishers or authors ever renewed.) In the public domain
1923 – 1963 There was a copyright notice and the copyright was renewed. 95 years after publication date
1964 – 1977 There was a copyright notice. 95 years after publication date

And that’s the easy part. It gets more complicated after 1977, with all kinds of “if this-then that” situations, until you finally get to the point where copyright notice isn’t at issue any more and everything is automatically copyright protected. There’s a terrific chart with just about every possible combination of “if this-then that” situations by Peter B. Hirtle of Cornell University that we should all have bookmarked by now. It’s here: “Copyright Term and the Public Domain in the United States.”

So when Gary asks if he should consult with the schools involved before copying a yearbook — and if we’re sitting out there thinking about putting our old yearbooks on our websites — part of the answer is in when it was published and whether it had the copyright notice required at the time. If it clearly is no longer copyright-protected, if it ever was protected, then the only reason to consult is courtesy, rather than law.

But if it isn’t clear that the yearbook is out of copyright, then consulting with the institution and its legal department is a really good idea. Because if it is still copyrighted, figuring out who owns the copyright may be harder than it seems.

You see, the usual rule is that the creator of a work owns the copyright.3 Easy enough: the school published it, right?

Not so fast.

There was a photographer, perhaps a photo studio, that took the individual pictures of the students, wasn’t there? Unless there was a contract between the photographer or the studio and the school, making it what’s called a work for hire, the copyright to those photos belongs to the photographer, not the school.4

And there were students who took some of the photos, of the student activities and clubs and sports events, weren’t there? Guess what? Same problem about ownership of the copyrights to those pictures.

All the school might have, depending on its arrangements with all the contributors, is what’s called a compilation copyright, and if so:

The copyright in a compilation of data extends only to the selection, coordination or arrangement of the materials or data, but not to the data itself. In the case of a collective work containing “preexisting works” — works that were previously published, previously registered, or in the public domain — the registration will only extend to the selection, coordination or arrangement of those works, not to the preexisting works themselves. If the works included in a collective work were not preexisting—not previously published, registered, or in the public domain or owned by a third part y— the registration may extend to those works in which the author of the collective work owns or has obtained all rights.5

In short, there are a lot of potential copyright problems in copying and republishing yearbooks. Consulting with a professional whenever the yearbook even possibly could still be in copyright is the only safe way to go.

We’ll leave to another day the pesky issue of what happens when one of those students doesn’t want that picture republished on the web…


SOURCES

  1. 17 U.S.C. §105.
  2. Information for table drawn from Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 23 Mar 2014).
  3. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Mar 2014).
  4. See Judy G. Russell, “Copyright and the genealogy report,” The Legal Genealogist, posted 20 Nov 2013 (http://www.legalgenealogist.com/blog : accessed 23 Mar 2014).
  5. U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations, PDF version at p. 2 (http://www.copyright.gov : accessed 23 Mar 2014).
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26 Responses to Copyright and the school yearbook

  1. Dave says:

    All I know is, one of the commercial class-reuniting sites has uploaded my senior yearbook, of which I was the editor in 1982. It seems to me that such is not fair use. They seem to have done most of the school’s books in a run.

    D.

    • Judy G. Russell says:

      There’s no way that copying an entire yearbook would constitute fair use, Dave. Not a chance. That then brings up the “who owns the copyright(s)” question — and whether anybody was even asked for permission.

    • Alice Crain says:

      Dave, that’s disgusting. I would contact my alma mater about this.

      Judy, thank you for yet another illuminating post.

  2. Patricia Epperson says:

    Great question! I wish I had known you back in 2003. I had classmates requesting copies of our 1963 yearbook. I felt there could be copyright problems in xeroxing the books. I contacted the publisher of our yearbook and asked if we could get copies or make our own. They told me we could run off copies of the yearbooks. Our yearbooks file was long gone. It never occurred to me that the school should have been contacted for their permission to copy the book. As to a “model” release? Again, never occurred to me. But, as to the student yearbook staff photographer, doesn’t their work belong to the school rather than the individual student?

    • Judy G. Russell says:

      >> as to the student yearbook staff photographer, doesn’t their work belong to the school rather than the individual student?

      You know what my answer to that is going to be: it depends! The blog post in footnote 4 on genealogy reports will give you some references to consider.

      • Patricia Epperson says:

        Thank you, Judy. BTW, I shared your blog about the yearbooks and copy rights to our district’s Director of Community Relations, which is a huge umbrella that includes alumni reunions & yearbooks. Pat

      • Alice Crain says:

        Judy -

        Just a quick heads up to let you know that the link in footnote 4 doesn’t work, it gives an “Error 404″.

        The same error occurs, by the way, when I click on the slideshow frames on your home page.

  3. Helpful and timely post – I was just sitting down to write about my great-grandparents’ appearances in their high school yearbooks (1920s). Thanks for sharing the handy table!

  4. Randy Whited says:

    Judy:

    Would the holder of the ‘compilation copyright’ have the legal right to republish the entire work? Besides the answer of ‘it depends’ of course :)

    I was thinking of either the school or publisher generating a reprint (either in print or electronically) of the entire yearbook. Likewise, how would this compare to a society newsletter or journal? Does the society hold a compilation copyright to the compiled work and have the right to reprint entire issues?

    • Judy G. Russell says:

      I hate to say “it depends,” Randy (that, of course, is a fib: lawyers LOVE to say “it depends”).

      But that’s the only possible answer. Most initial agreements for publication — say, the contract between the photograph and the school or between a society and an author of a journal article — specified print rights. Few older contracts even considered the possibility of electronic publishing. That’s a horse of a different color and generally is not considered to be part of an initial license to publish. If the underlying copyright was actually assigned, or if the contract was broad enough to be read as unlimited, that’s another story. So it’s always going to be case-by-case or, to use a phrase, “it depends.”

  5. Amy says:

    Another great discussion of the myriad copyright issues involved in something that seems so simple. One further issue that occurs to me: when we copy and paste those pictures from yearbooks that we find, e.g., on ancestry.com, are we engaging in fair use? Does ancestry.com’s license to use the material cover such uses by its members? If I go beyond attaching it to my tree and download it to send to someone else or to post on my blog, have I exceeded that license? Is it fair use?

    Always so much to talk about. And if I were teaching copyright law one more time, lots of good exam questions here! :)

    • Judy G. Russell says:

      Amy, you know only too well that the answer is gonna be (one more time, all together now): it depends. First and foremost, is the material still copyrighted by anyone? If not, then no problem with any use we make of it (subject, always, to the website’s terms of use). If it is still copyrighted, what rights if any does Ancestry have — and what rights can it share with its subscribers?

    • Alice Crain says:

      Amy,

      This is what Ancestry says:

      “The Website contains graphics, information, data, user generated information, editorial and other content accessible by Users (the “Content”). Except for Web Records, which are governed by the third parties that host the records, all Content is owned, licensed to and/or copyrighted by Ancestry and may be used only in accordance with this limited use license. The Website is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.”

      “You may access the Website, use the graphics, information, data, editorial and other Content only for personal or professional family history research, and download Content only as search results relevant to that research. The Content may be downloaded onto mobile devices or desktop through the use of authorized Ancestry software. When downloaded, the Content remains subject to the limited use license contained in this Agreement. You may use the software provided on the Website only while online and may not download, copy, reuse or distribute that software, except where it is clearly stated that such software is made available for offline use. Ancestry and its licensors retain title, ownership and all other rights and interests in and to all information and Content on the Website. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. Violation of this limited use license may result in immediate termination of your membership and may result in legal action against you.”

      I’ll defer to you and Judy as to what, exactly, that means with regard to your Ancestry question.

  6. Kevin says:

    I am too a yearbook editor for my high school. I took most of casual photographs that appear in it along with other photographers on my staff. The format, photographs and words use had to be approved by me.

    When classmate.com bought the use of it from one of my classmates, I was not consulted. The yearbook on line is shown with many handwritten notes from classmates wishing the same trivial congratulations. I was told in a round about way that changed the overall rights to published the book. I disputed it! I wrote an open email to all and brought it up in the genealogy world but did not get any response.

    I am grateful you submitted an article on it. I was going to offer the competing companies the use of my extra copies of mine that have not be written in to copy so that there would be a better copy to view, but have held out for some reasons.

    I am like most genealogist, happy to find photographs and information from the past, but unhappy that no one ask if it was right!

    I am in a quandary not knowing where to lean on the subject!

    • Judy G. Russell says:

      Fundamentally, if you want to fight this, you need to talk to a copyright lawyer.

    • Kevin says:

      I am replying to my own message to say that I have benefited from my father-in-law yearbooks online. He has dementia! When I found them online, I shared them with him and he lit up telling me stories like it was just yesterday. I shared them with him every chance I have, since his short term memory has gone and I don’t mind hearing the same story over and over.

      I thank the community who post it thru http://usgenweb.org/ and ancestry.com for having the other years.

  7. DT says:

    My issue with digitizing yearbooks is moral, not legal. In college the majority of students were legal adults. You could say that was fair game. In high school they are still children. I have seen (don’t remember where) talk of putting elementary school yearbooks on line as well.
    As we do in genealogy when we put our ancestors into the perspective of their time, I think we should keep in mind our own. Even though they were not private photos, we did not take school pictures with the knowledge that they could one day be seen by the whole world. Though that child may well be into adulthood now, it feels like our right, or our parents right to choose has been taken away.
    For those yearbooks done “before internet”, as a genealogist, as bad as I hate to say it, I wish they were not put online until after the people in them were deceased.
    Judy, I enjoy reading you blog every day. You have the great ability of teaching like a friend telling a story!

  8. Dan says:

    Hmmm, my wife’s g-grandfather was the photographer “of record” (so to say) for about 30+ years here in town, for most of the schools. For all I know, he may even have been the one who took my pictures when I was in elementary school.

    Do you suppose the schools would have any records after all this time about contracts?

    My wife is his only living direct descendent, so that could possibly make her a copyright holder of 30+ years of school photos? If there was a copyright notice (by him – not the school)? And IF it was renewed?

    Do I have the “it depends” clauses in line correctly?

    Dan

    • Judy G. Russell says:

      You do — and she might be! It’d sure be worth checking with the school on the contracts, mostly for the signatures and things reflected there.

  9. Pingback: Friday Finds – 03/28/14

  10. Jerry says:

    I’m a professional photographer with campus, event, and sports photos in many yearbooks in the era discussed in this article. I definetly still own the copyrights to all my photos. I granted those yearbooks a singlular right to use the photos in a limited distribution single run publication. That grant does not carry over to any form of reproduction, especially not a for profit use by classmates or e-yearbooks. The challenge for us pros is the cost of making claims and recovering sufficient damages to make a challenge financially viable. This is what these guys count on when doing these projects.

    • Judy G. Russell says:

      That was the provision in your contract, Jerry, or in cases where there is no contract mentioning copyright in the years since the rule changed and work wasn’t so readily considered a work for hire. But it may not be true in all cases.

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