Re: Copyright and Yearbooks

On May 1, 1997, Carol Simpson <csimpson[_at_]onramp.net> wrote:
>
> One of our schools was having a retirement party for some teachers
> and they wanted to make photocopy enlargements of some old
> yearbook photos of the retirees for a display. The local copy shop
> refused saying the book was copyrighted. The book (1968) has no
> copyright info (in fact the district claims no copyright on any of
> its publications) nor does the yearbook publisher claim any copyright.
>
> What is the status of the work, and how can these folks get their
> copies made?

     I think the the short answer to your second question is: go to a different copy shop. :-)

     The first question is somewhat more involved, although it shouldn't be. The "author" of the photographs owns any copyright unless the photos were a work made for hire. Under the 1909 Act, case law defined works for hire very broadly, so that the party for whom the work was made usually owned the copyright. So the copyright, if any, is probably owned either by the District or by the publisher, depending on the contract between them. (I don't really know which would prevail if there was no written agreement).

     But it shouldn't really matter in either case, because at the time U.S. copyright law required notice to be placed on all published copies. So if the yearbook was published without a copyright notice, the yearbook should be in the public domain, and should be freely open to anyone to copy.

     I say "should" because there is an exception to the above: the distinction between a "general" publication and a "limited" publication. If the work was distributed only to a "select group," for a limited purpose, with an express or implied limitation on further reproduction, distribution or sale, then the publication was a "limited publication," and it did not place the work in the public domain. The problem is that courts today have a tendency to be very generous about finding something a "limited" publication, due to hostility to the notice requirement. I think one could easily argue that the students were a "select" group, but I doubt there was any implied restriction on what students could do with the yearbook, so I would be inclined to say this was a general publication; but you never know what a court will do.

     [This example demonstrates one of the great failings of copyright and of our legal system in general: the law is so elastic that even an experienced attorney can rarely give a definitive answer to many legal questions, leaving risk-averse clients to be overcautious and fearful of potential liability. I, too, have had a lot of problems with Kinko's and other copy shops, even when the material to be copied clearly falls in the public domain. Kinko's in particular is cautious because of past lawsuits involving college coursepacks.]

     So, if you want to be super-cautious, you could write the publisher and ask their permission, even though there's a good chance that the District owns the work or that it has fallen into the public domain. (There is a risk, however, that in doing so you may be admitting that you think they own the rights in the yearbook.) The only reason I can think for them to refuse permission is if they offer an enlargement reprint service themselves, in which case you could simply pay what they're asking. If they don't offer such a service, or you can't locate the publisher, then it's pretty unlikely that they'd try to sue you, and you would have a pretty good case on fair use even if it was later determined that the work was still protected by copyright.

     The usual caveats apply: the foregoing does not constitute legal advice, and does not create an attorney client relationship between us. If you want legal advice, I suggest you contact a practicing attorney.

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri May 02 1997 - 23:12:25 GMT