Dear Rich: Our band has written and recorded a song that is about looking back at times past when it was "just you and me and some good old rock & roll." We are creating a lyrics video and have decided to use candid photos scanned out of high school yearbooks from the late 70s and early 80s. The photos will be altered with various effects to enhance the old, nostalgic look. Nonetheless, specific photos and faces will be recognizable. Obviously, the purpose of the video will be to promote the song and the band and, hopefully, drive sales.
What kind of copyright problems are we facing? Who owns the rights to the photos? Do we have a fair use defense? The rights to the photos are most likely owned by the yearbook photographers. (We've addressed yearbook photo issues a few times before and
this post discusses ownership.) The subject of the photo -- the high school student -- can only hassle you if you
defame them or invade their privacy or use the image in an ad or an endorsement (and we think a brief appearance in a music video is unlikely to trigger the
right of publicity).
Fair use? We're not sure about your fair use defense; it all depends on whether your use of the photo could be considered
transformative. Maybe ... but it really doesn't matter because as readers of this blog are aware, even when the experts claim it's a fair use, that
often has little practical effect.
Bottom line dept. Are yearbook photographers from 30 and 40 years ago likely to see your video, recognize their photos, and complain? We think the chances are slim.
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