Copyright, Yearbooks and the Internet

I’ve discussed the Copyright Claims Board (CCB) extensively on this site. The (relatively) new copyright small-claims court in the United States aims to resolve copyright disputes where a full lawsuit may not be practical.

One of the benefits of the CCB is that issues that don’t come up often in federal courts are heard there. This leads to some interesting and novel cases that raise unique questions.

Photographer David McCreery filed two such cases in February. On the surface, these are standard CCB cases involving a photographer filing claims over the use of their images online.

However, McCreery isn’t filing claims over Instagram posts or YouTube videos. Instead, he’s filing claims over photos he took for high school yearbooks. The sites he is targeting, Classmates.com and Ancestry.com, have extensively used the images as part of their core offerings.

These cases raise some difficult questions that should give both these sites, and others like them, pause to think.

Background of the Case

Currently, we only have McCreery’s claims as filings in these two cases. This means that we don’t have much background on the cases themselves.

However, the critical facts are relatively straightforward. McCreery is (or at least was) a photographer in Michigan who took hundreds of photos of students at South Haven L.C. Mohr High School (SHHS).

Those photos, totaling roughly 258 images, were used in the 1995 and 1996 school yearbooks. McCreery registered his pictures in May 2022. However, he alleges that classmates and Ancestry are using the images without permission.

He alleges that Classmates.com offers unauthorized reprints of the yearbooks, including both softcover and hardcover variants. He claims the site is directly profiting from his images by reprinting them without a license.

The arguments are a bit more nuanced with Ancestry.com. That site uses the photos as part of its core product of helping people learn about their family tree. He claims Ancestry uses the photos as part of its subscription service, which costs between $22 and $60 monthly.

In both cases, he is seeking actual damages of $300 per image up to the maximum of $30,000 in damages.

What We Don’t Know

Right now, we don’t know a great deal about this case. All we have is McCreery’s claim and the evidence submitted with it.

This means a great deal of important information is missing. This leaves open a lot of questions such as: Was McCreery an employee at the time? What was his agreement with the school/yearbook? What agreement does the school have with the sites? And so forth.

Given that McCreery registered the images under his name, I have to assume he was an independent contractor. But we still don’t know what, if any, agreement he had with the school itself.

These details will likely emerge over the course of the case unless the respondents opt out. However, it’s possible (and even likely) that the contracts are either non-existent or minimal.

But even if they do exist, it’s unlikely that an agreement signed in 1995 or 1996 would have included causes for use on the internet.

Many of the key questions in this case were likely never put to paper before the book was printed. This means the CCB may have to determine what the implied license covered and whether the respondents violated it.

That, in turn, could significantly impact countless other sites in similar positions.

Why Yearbooks Are Tricky

This situation is not unique to SHHS or Ancestry.com/Classmates.com. High school yearbooks, on paper at least, are shockingly fraught with copyright concerns. However, most of the concerns deal with ensuring the book is copyright compliant before it is published, not after.

The key issue is simple: Yearbooks are (traditionally) a mixture of different types of content cobbled together in a relatively informal manner. The average yearbook has contributions from professional photographers, students (including writing and images), and staff.

Though their employment would likely cover school staff, making the district the copyright holder, everyone else involved may still hold copyright interest in their work. Students do not give up their rights simply by offering a photo or a poem for publication. That is especially true with uses they could not have anticipated when they gave permission.

But the big problem is just how little consistency there is. There are over 20,000 high schools in the United States, and most have a yearbook. Though some are likely careful and considerate of copyright issues at every step, others are equally likely not.

Even with the school’s permission, it can be challenging to say who owns what in the book and what permissions they gave at the time. Each book presents its own set of challenges when it comes to copyright.

However, that hasn’t been an issue because of the nature of yearbooks. Their value is almost purely sentimental. There’s almost no reason to sue over such an infringement, even when the book is published for free online.

But now yearbooks have commercial value. Whether for ancestry purposes or to sell reprints, old yearbooks are becoming more valuable. At least some photographers are taking notice.

That makes this case a likely warning shot as other photographers take similar interest.

Bottom Line

When it comes to copyright and yearbooks, most focus has been on ensuring that the books are not infringing, not the copyright in the completed work.

In recent years, there’s been a significant push to digitize and preserve yearbooks, especially older ones. On the whole, this hasn’t created a great deal of copyright problems. The reason is simple, since there wasn’t much commercial value, there was little reason to take action.

However, sites and services are now reselling yearbook content. Some commercialization is taking place, whether it involves using the images for ancestry purposes or selling reprints of older books.

While yearbooks have long had something of a loose relationship with copyright, now that history is in the spotlight.

Whether McCreery’s claim is an outlier or the first of a trend remains to be seen. Either way, it reminds us that the relationship between yearbooks and copyright is not straightforward and that there are some risks to using yearbooks in your product.

This will be a case to watch.