MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question needs to be answered on a sliding scale.

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

Scenario 1: "Scrapbooking"

A museum makes robust use of social media to connect with its community.  At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community.  Members often comment how much they enjoy the images and connectivity.

Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.

No written, signed permission to use the employees' images is obtained.

Scenario 2: "Image Crafting"

A library is working to show its commitment to diversity, equity, and inclusion.  The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.

No written, signed permission to use the employees' images is obtained.

Scenario 3: "Stone Cold Marketing"

An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property.  The donated land is more centrally located in the library's area of service.  To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land.  The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.

No written, signed permission to use the employees' images (or their kids' images) is obtained. 

In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]

"Ask the Lawyer" has addressed this issue a bit before: see https://www.wnylrc.org/ask-the-lawyer/raqs/255 and https://www.wnylrc.org/ask-the-lawyer/raqs/49, but we haven't focused on solutions to the question posed by the member: 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 is where our scenarios come in.

If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse.   That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.

As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law.  A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.

On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.

What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image?  A few things:

First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media.  If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]

Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.

Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications.  Then ask who would want to be featured.  For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials.  If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release.  This is not a requirement!"

Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description.  For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."

And fifth, when in doubt, get an image release.

An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.

That said, here is a sample:

Image Release

NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives.  As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.

DATE:______________

SIGNATURE:______________________

WITNESS:____________________________

Records retention period of this release: PERMANENT.

A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."

Thank you for a thoughtful question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

1.  If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.

2.  If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment.  But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).

3.  If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).

4.  If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).

5.  Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law.  This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]

6.  Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.

7.  And now, for some thoughts on how this all fits together.

[Clears throat, steps on soapbox]

There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.

On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.

Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.

How is that done?  When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:

 "Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."

Another example, very different but just as enforceable, would be:

Thanks everyone for gathering today.  While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."

...and the combinations could go on.

By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.

Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to info@losapllc.com or through the "Ask the Lawyer" submission page).  This is an evolving topic, and I am sure many library council members out there have thoughts on this!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see https://www.wnylrc.org/ask-the-lawyer/raqs/67.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This sounds like a great project…a public page providing a guided tour of art throughout the campus, with maps, information, and pictures to help the viewer find the works.

But you’re right, if they haven’t expired, the rights are still the property of the artist—or their heirs, or any third party they were sold to.  And the digital image you create could infringe those rights.

There is no one catch-all “exception” to copyright that completely avoids this, but there are some steps you can take to keep your institution on the safer side of the law. 

Here they are, in descending order of strength and certainty:

1.  Verify that the works are actually still protected by copyright.  Anything from before 1923, for instance, is no longer protected.  If you want to showcase 50 works, and 25 of them are from before 1923 [2], you’ve just reduced your concerns by half!

2.  If your campus has an art registrar (a position distinct from an admissions registrar, but with a similar flair for detailed record-keeping), ask them if the donation came with any assignment or license of copyrights.  Sometimes, the donor—especially if they were the artist—will give limited duplication and display rights for purposes of promoting the work.  While by no means a certainly, it is worth checking out.

3.  If the rights are still valid and no license has been obtained previously, it is possible to ask for permission now.  A simple letter—perhaps sent in coordination with your department for Institutional Advancement—could ask:

Your lovely work, TITLE, was donated to our university in YEAR.  We are hoping to secure your permission to duplicate the work so we can show a full-color reproduction on our website.  The image would be used to illustrate an online and print guided tour that showcases our more valued works of art, including TITLE (the “Work”). 

If you still own the copyrights and can give permission, please check one of the circles below, sign in the space below, and return this letter in the accompanying self-addressed, pre-stamped envelope:

o   I hereby license the university to use the Work without any restrictions, in any medium whatsoever, for any purpose whatsoever.

o   I hereby license the university to duplicate, publish and display the Work solely for the use described in this letter, in both print and via the internet, with no further restrictions or conditions.

o   I hereby license the university to duplicate, publish and display the Work per the following terms:_________________________________________________ ______________________________________________________________.

Thank you for considering this courtesy to our university.

Very truly yours,

[YOUR NAME]

ACCEPTED AND SIGNED:________________________      

                                                            [ARTIST NAME]

on __________________

               DATE    

4.  “Claiming Fair Use,” version 1: This takes advantage of the formula for using a copyrighted work without permission, created by Section 107 of the Copyright Act.  Here’s what you do: carefully write out a description of your initiative, and why it is important that the public know of and have a visual cue be able to find these works.  Then take a photo of each artwork…not head-on and alone, but at an angle and with a live person—perhaps a student—interacting with the work.  Make sure the art is not duplicable from the digital image, and make sure that image is more about the person viewing the work, and its location, than the art itself.  Generate a description of this image that speaks to what is happening in the photo, including how people interact with the work.  Include not only the image, but these observations in your guide, letting people know they can see the actual work in person.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages¹.

5.  “Claiming Fair Use” Version 2: This is also an approach under 107.  Generate very low-resolution, watermarked images as described in the member’s question, and again, document the value of being able to use a limited visual element to help people find that specific work.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages.

And there you have it: no magic bullet, but some options that, if combined, can help you create an infringement-free, beautiful guide to the art on your campus.  Of the five options, “1,” “2,” and “3” are by far the most prudent, so try those first, and then, only if you need to, consider options “4” and “5.”

I hope fate is kind, and some of your artworks pre-date 1923, or their owners are generous and easy to find.  Good luck!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

In this age where every “click” and post is potentially monetized (and thus “advertising”), this rule is tough to advise on.  If I post a picture of my sister on Facebook, and her smiling face helps Facebook get attention for a sidebar advertisement, can she fulfill a threat made back in 1987 to get me in “sooooooooo much trouble?”  Not quite.  But if I create an ad for an event to be held at my law firm, and I use someone’s image without permission, that could be problematic.

The next layer of concern could come from Facebook itself.  As they say in their “Terms,” users may not:

…do or share anything:

• That violates these Terms, our Community Standards, and other terms and policies that apply to your use of Facebook.
• That is unlawful, misleading, discriminatory or fraudulent.
• That infringes or violates someone else's rights.

[emphasis added].

So, if my sister alleges that I have “violated her rights,” by posting her picture, am I risking my Facebook account, too?

A lot of this comes down to how Civil Rights Law §50 is being applied these days.  As of this writing, I did not find any case law where simply posting an image to Facebook violated §50.  Further, recent case law gives insight into what the courts will consider to be “advertising.”

“Under Court of Appeals precedent, the statute is to be narrowly construed and strictly limited to nonconsensual commercial appropriations of the name, portrait, or picture of a living person. A use for advertising purposes has been defined as a use in, or as part of, an advertisement or solicitation for patronage.” [1]

This sounds helpful, until you starting thinking that, in the world of Facebook, everything is only one degree from being an advertisement.  So how does a library post photos of patrons using their library without losing sleep at night?

The 2013 case of Leviston v. Jackson is instructive.  In Leviston, a woman sued the rapper 50 Cent for posting a sex tape (not made for commercial use) featuring her on his unmonetized web site.  During his testimony, 50 Cent stated that he posted the video to antagonize an opponent in a rap war.  During his testimony, 50 Cent admitted that rap wars are conducted in part to test the mettle of different rappers, and to bring attention to the combatants.  The judge, seizing on this admission that rap wars are in part for “attention” (of the commercial variety) refused to dismiss the Plaintiff’s claim.

So, if your public library is at war with the association library across town, or fighting a budget battle, and you would like to post pictures of patrons claiming “Our Books Our Bigger!” your library should get written image releases.   If, however, your not-for-profit library is simply publicizing “new hours!”, the person whose image you use would have a very weak claim (if they had a claim at all).

That said, in general, it is a good practice for libraries to get image releases whenever possible.  First, you never know when you might snap the perfect picture to illustrate why a new resources or a bigger budget would really help your mission.  Second, asking for permission to use a person’s image will emphasize your library’s respect for personal privacy and patron confidentiality.  And finally, by memorializing permission to use an image, you reinforce the patron’s connection to the library…and generate a great record for the archivist who will be trying to catalog your photos in 2118!

Thank you for your question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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?

Who authored the pictures?  If not a company, what is their name and birthdate?

Does the donor solely own the copyrights?

Is copyright ownership being given to your institution? If not, what permission comes with the physical donation?

May the receiving institution license use by others (a “transferable license”)?

Were the copyrights registered?

Are there any reservations or conditions on this gift?

If donated as part of a will, obtain a copy of the will.

What is the value of the gift? (for tax purposes, if the donor wants to claim a deduction)

Confirming the scope of the donation, the conditions, and value of the gift creates a firm basis for future decisions, including how to address the potential risks of posting pictures of minors.

It is also helpful to get as much additional information as you can at the time of the donation:

To the best of the donor’s ability, what is the date, place, and identity of those in the pictures?  What else of significance is being depicted?

What type of equipment was used to product the images?

Why were the images gathered?

Who collected the images?

Why is this collection significant; why should it be preserved and made available to the public?

Why does this collection fit into the mission of your institution?

Knowing as much as possible about the provenance and purpose of a collection makes it easier to access the protections built into the law for journalism and scholarship.  And with that background, it is easier to assess the risks when the collection involves human subjects.^[1]

Those risks include:

Will this content be used by the institution in a way that violates New York’s bar on use of names and likenesses for commercial use? ^[2]

Are there any ethical considerations that bar including these images in the collection?

Is this depicting any personal health information?

Are there special sensitivities we must consider and plan for?^[3]

Will the names of those depicted be included in the metadata of the digital archive?  If so, why is that necessary?

When it comes to minors (those under 18), additional risks are:

Will this reveal a minor’s youthful offender status?

Will this reveal participation in the social services system?

Does this depict an illegal act?

If the answer to any of the last eight questions is “yes,” a consultation with a lawyer, and perhaps an an image-by-image review, may be warranted.  But while that may time time and resources, it may be worth it, since there still may be a way to digitize the photos and make them available via the internet…especially if they have sentimental, cultural, historical and academic value to our region and beyond.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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 legal considerations.

Here are some “red flags” for converting video of your past lectures for digital re-sale.

Image rights

In New York, the commercial use (including sales of instructional DVDs, as mentioned in the question) of a person’s image, likeness, and name must be with written permission.  Of course, for employees whose routine duties include being recorded (like newscasters), that consent is addressed at the start of the job.  But for instructors who may have been aware they were being taped in 1988, but weren’t aware that the tape could be acquired by paid viewers later via the Internet, there could be some risk that a past instructor might object to being included.

Further, in the event the instructor was an employee covered by a collective bargaining agreement or other employment contract at the time of filming, they could have some rights you need to consider.  A quick check with a Human Resources department should be able to confirm if any past or current agreement poses any complications.

And finally, in the event the instructor who was filmed was not an employee, but under a speaker agreement--perhaps speaking for a small fee—an institution must exercise caution, since awareness of being filmed does not constitute permission to mass-produce the product and sell it in the marketplace.  If possible, sending a note to the former speaker, thanking them for their past participation and offering a small fee in exchange for their signature on written permission for the new use, is best.

The bottom line: there are a lot of possible permutations to the “image use” issue. To avoid them, whenever possible, verify that your institution has written, signed permission to use a person’s image before selling any newly converted recordings.

Accuracy and Reliability Disclaimer

In the event any of the instructional materials relate to a trade, profession, or other topic governed by prevailing standards, law, or regulations, a disclaimer that carefully clarifies that the content was generated in 1988 (or whatever year applies), might be wise. 

Of course, if the content is opinion-based, that is not an issue.  But if the person is relating an objective best practice, regulation, or law, making sure a viewer is warned that the information could be out of date is critical.

It’s a long shot for the scenario posed by the member, but in the event there is any trademarked material (for instance, a set of instructional booklets with a prominent logo) be wary before digitizing and charging for access.  The incidental use of another entity’s trademark could create an alleged infringement.  Fortunately, as can be seen in a lot of reality TV, this can be avoided by simply blurring the mark!

And finally….Copyright

The member is correct; if the institution (through its employees) is the entity that created the recording, and there is no written agreement to the contrary, the institution owns the copyright, and can duplicate, sell, and create derivative works based on the content. 

However, care should be taken to verify that no independently owned content is contained within the video (a person reading a poem, for instance).  While under many circumstances such inclusion can qualify as a “Fair Use,” that is not always the case (for more on this caveat, see the “Recently Asked Question” posted on Saturday, January 27, 2018).