Do student photographs belong to the school or the student?
The explanation of copyright ownership versus print license rights by photographers to clients can leave one feeling like a broken record.
But what happens when this copyright law starts to affect the youth of our nation in their educational capacities?
In 2015, a yearbook student, Anthony Mazur, in Flower Mound, Texas was threatened with suspension from school and all extra-curricular activities when photographs he had taken with a school camera at school events were found in his personal Flickr Stream.
The School District is demanding that all photographs be removed from the Flickr stream, which inspires the discussion of copyright ownership and the photographs taken.
Copyright Law and Ownership of Photographs
Let’s take a little crash course in Copyright Law real fast before digging into the specifics.
In a nutshell, the copyright owner of a work is initially the author of the work. Registration of copyright is not required for the protections of copyright law outlined in Title 17 of the Copyright Act. The author has say over how the photographs are used (within the law).
Okay, so we’d think that Mazur owns the photograph since he is the author. After all, he composed the photograph, adjusted the settings and pressed the shutter, right?
The problem is that ideas are not protected by copyright, only the output or expression of the ideas. The fact that Mazur conceived the idea and composition for the photographs do not provide him the copyright ownership on its own.
Throwing on the pile of factors that Mazur pressed the shutter helps to lend a stronger argument to his ownership and use of the photographs.
However, Mazur was utilizing the school’s equipment during a school-sponsored activity (yearbook) in the creation of these photographs. The confusion of copyright ownership is muddled by these facts. This is a common question for photographers ranging from second shooters at weddings to attention-grabbing situations such as the Red-Carpet Ellen Photo and Monkey Takes Camera. Who actually owns the photograph taken when other factors come in to play?
To see how this impacts Mazur, and other photographers in a similar situation we need to continue through the analysis to see who can hold the ownership based on capacity, determine whether there existed a work-for-hire situation and potential privacy issues in schools.
First, can a school hold copyright ownership?
The answer is yes. School Districts can hold copyright ownership of the images in question. Section §105 of the Copyright Law states “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.”
The law obviously shows that they can own copyright of an image, but the question is whether the school has actual ownership and requires further analysis to the capacity in which Mazur was taking these photographs.
The second question to ask is – was this a “work-for-hire” situation?
The Copyright Act has a work-for-hire doctrine that generally requires a written and signed agreement, unless the individual is working in an employment capacity. If Mazur was in fact a work-for-hire (or employee), then the discussion would stop here as the handbook specifically outlines copyright ownership to belong to the school, even absent a written agreement.
Based on the facts, it is tough to construe a yearbook volunteer position as an employment relationship. With the primary goal of yearbook program to instruct and educate students on use of photographs, text and creation of a published work, it can be concluded that Mazur was not in a work-for-hire situation, but rather in a position to receive education through a photographic medium.
This is because the Lewisville Independent School District Board Policy manual outlines intellectual property rights by capacity. The manual specifically states that “a student shall retain all rights to work created as part of the instruction or using District technology resources.”
In fact, the handbook, not only endorses Mazur as a copyright owner of the photographs but reinforces their adherence and agreement with Copyright Laws – the same laws they are refusing to adhere to with their threat of Mazur’s suspension.
Based on the released facts, Mazur has a strong case for copyright ownership here because he was using technology resources (the camera) as part of instruction (the yearbook class). And according to the District’s Handbook, the District has a policy that agrees with Mazur’s use of the photographs.
The School District’s Statement
Despite the School District’s Published Copyright Policy, the School District provided TheLawTog a statement contrary to their policy.
According to Lewisville ISD’s Acceptable Use Policy, the electronic communications system is defined as the district’s network (including the wireless network), servers, computer workstations, mobile technologies, peripherals, applications, databases, online resources, Internet access, email and any other technology designated for use by students, including all new technologies as they become available. The district considers the use of said technologies to be inappropriate when a student electronically posts data (including but not limited to audio recordings, video recordings, images and personal information) about others or oneself when it is not related to a class project and/or without the permission of all parties.
Lewisville ISD’s practice is if anyone attending a public district event takes photos using their own device from an area accessible to the public, the district would not interfere with those photos being posted to a third-party site.
The district is not at liberty to share student information pertaining to this situation due to the Family Educational Rights and Privacy Act [FERPA].
The Acceptable Use Policy quoted in the District’s Statement does not address the copyright ownership issues, rather opens the door to discussion to the usage of these images on personal platforms.
Based on the law and facts provided, Mazur clearly owns the copyright to the photographs, a privacy issue exists here as the photos were published on his personal Flickr account.
Which begs the question…
Does an expectation of privacy exist for students?
In general, if a minor is in public then anyone can photograph the minor and use the image for any editorial use (i.e., a purpose that doesn’t directly profit you). If the image is going to be used for a commercial purpose (i.e., for your profit) then you have to have a model release signed. A model release can be a subsection of your general contract or its own legal document. It gives permission from the subject, or the guardian of the subject in the case of a minor, to be photographed and what future use rights are allowable by both parties. In other words, whether you can use it on your website, whether they can freely print images, etc.
While from the above it seems that you should be able to photograph freely for editorial use, some states are proposing laws that require parental consent to photograph minors at any time or place.
For example, Georgia passed a law making it illegal for anyone to photograph a minor other than the minor’s parent. This sweeping language brought immediate criticism and there was question regarding its constitutionality. The following year the language was revised, only disallowing photography of a minor by a sexual offender. While Georgia’s new law may not require the average photographer to get parental permission to photograph a minor, Georgia is not the only state looking for new and creative ways to protect minors from unwanted photography.
In addition to state laws, photographing minors may be further restricted at the local government level and even by the school district. School districts often have restrictions in place requiring parental consent for photographing a minor on school grounds. There may be exceptions for things such as extracurricular activities or the school may pre-emptively have parents sign media releases at the start of the school year, so you need to know the policy of the school grounds that you will be working on.
Also, requiring parental consent, some schools will also have specific requirements for you to complete before setting foot on school grounds. For example, you may have to submit fingerprints, complete a background check, check in at the front office, wear a visitor badge, etc.
From the research of Texas law and evidence provided, there are no restrictions to photographs of the other students by Mazur or other yearbook students as no expectation of privacy exists on school grounds. However, if images were in fact sold for personal gain an issue still exists for Mazur.
Mazur owns the copyright
In the face of these facts, the School District’s threat of suspension is unreasonable and detrimental to the educational environment of students. Instead of encouraging students to learn new things, this type of action places a barrier to the proactivity of students in their learning capacity.
This situation should bring to the light, not only copyright ownership for students, but the need for potential privacy issues in schools. The School District should institute a policy for dealing with the use of student photographs. This policy would need to comply with the Family Educational Rights and Privacy Act (FERPA) and should require parents to solicit parental permission to post photos of children of the web.
But until these policy and legal changes are made, the School District’s hands are tied and Mazur is within his rights to publish these photographs.
As more facts come to light, an update will be added! The information in this post is based on the facts known to TheLawTog at the time of publication.