Tuesday, March 15, 2016

Wants to Digitize Yearbooks and Student Newspapers

Dear Rich: I am part of an effort at a California community college to assist in digitizing and digitally hosting our college's history. Students are hoping to digitize/host: archived copies of the student newspaper, yearbooks as well as the histories of four of our presidents. Concern has arisen that these works may be copyrighted and we, as the college, may not be the copyright holders, rather it may reside with the author - who on some of these publications is unclear. None of the publications have any copyright information listed. We're under the impression that all of the works were either commissioned by the college directly or by college entities (associated students/student affairs office/communications department). We're wondering if, there is a copyright on this seemingly non-copyrighted information? If there is, does it seem likely that we are the copyright holders? Would this fall under fair use? Our intention is to offer this material for free, online, for anyone interested in researching the College's history.
Your question raises lots of copyright issues (e.g., how the works made for hire law affected older works versus post-1978 works, whether photographers may own the copyright in old yearbook photos, etc.) but perhaps we can just cut to the chase and say that we don't imagine you'll face legal challenges over your digitization efforts. We say this partially based on copyright law. First, it is possible that the college may own some of the copyrights, or alternatively, that some of the copyrights are public domain (for example, due to a failure to renew). Second, the trend in fair use law is to permit the digitization of works for research and archival purposes. More importantly, it is highly unlikely that anyone who contributed to this content (yearbook photographers, student newspaper writers, researchers) will believe they have a copyright, will see the work, and will go to all the effort to bring an infringement action for such an archival use. In any case, with this set of facts, if someone does rise up to challenge your digitization, your prompt takedown of the offending work will probably eliminate any financial liability.