We at [redacted higher ed institution] are considering digitizing our past yearbooks and storing them in an institutional repository which has the option of materials being password protected or available publicly. We are also considering using these photos in future advertising materials. I was wondering what is the best practice for determining the copyright status of the photographs in these yearbooks? Should we attempt to contact the subjects of the yearbooks to inform them that their yearbook photos will be published in our institutional repository or used in school advertising?
We have had a lot of questions about yearbooks over the years of Ask the Lawyer. 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. However...
Regarding individual images/photos: If any images were generated by an outside 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. 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:
[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]
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.
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" 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 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:
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;
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!
 See “Ask the Lawyer” yearbook-related questions on FERPA; Request to remove scanned pages; Photo Copyright and Copying
 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.
 "Outside" meaning not an employee of the school.
 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?
 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.
Tags: Academic Libraries, Copyright, Digitization and Copyright, Image Rights, Yearbooks, Advertising