Does a school have the right to use a student journalist's photo?
The copyright clause of the U.S. Constitution gives an “exclusive right” in creative works to authors. The general rule is that an author owns the copyright for works she creates. However, U.S. copyright law has exceptions. The school might have rights to the photo if it is considered a "work for hire," or if the student signed a license allowing the school to use the photo.
What is a Work for Hire?
“Work for hire” means that an author is hired to make a work for someone else. In work-for-hire agreements, the party who hired the author to make a work owns the copyright to the author’s work. (Unless they agree for the author to own it). A high school might try to use the work for hire exception to say that the school owns the copyright to a student’s photo. There are two ways to have a work for hire agreement. One way is if an employee creates a work because it is part of their job. Think of the paparazzi taking a photo for TMZ. If the photographer was hired full time to take pictures for TMZ, any pictures they take while working are owned by TMZ. The other way to have a work for hire agreement is called the non-employee exception. This would happen if a party hires an author to create a work specifically for that party. Think of hiring someone to take your senior picture, you own certain rights to the picture since you hired a photographer to take it, and the photographer is limited in what they are allowed to do with your picture.
Is the school photo a work for hire?
Probably not. In this case, the school would have a hard time arguing that the student is an employee because the student is not paid. The school would have an even harder time saying the work was ordered specifically for them because a journalism class syllabus is unlikely to have the proper language to make that agreement work.
Another argument the school might make is that the copyright was transferred to them. This is called an assignment. If a copyright is assigned, that means that the “exclusive rights” the author has to a copyright are transferred to someone else. This is different from a work for hire because in work-for-hire agreements, the author never owned the copyright to begin with. An assignment is a way for authors to sell their rights away to a buyer. Assignments can be tricky, because they can be confused with licenses. A license is where a copyright holder lets someone have permission to use a work in a certain way, but not to own it. Think of when you buy a song on iTunes (if people even do that anymore), you really buy a license to listen to it, but you don’t actually own the song.
So...is the photo an assignment? Is it a license?
It’s most likely a license. Most high school journalism classes have language in the syllabus that gives the school a license to use work created by the students in class. It would be harder for the school to convince a court that it was assigned the student’s work, because the language needs to be very specific. The syllabus would have to say that the work is the property of the school, and that the school is the exclusive owner of the work.
Three things have to happen to create a copyright license.
- The copyright owner agreed to give permission to use their rights in the copyrighted work
- The agreement doesn’t limit how the owner can use her copyright
- The agreement must be in writing and signed by the owner.
Unless the language for the journalism class specifically states that the school has exclusive rights to student work, the school is likely to have just a license, but not a copyright assignment. This means that the student photographer would still likely own the copyright to their photo.
What can I do if I see my photo being used without my permission?
If you find a photo you took being used without your permission, you can send the person who is using the photo what’s called a “cease and desist” letter. This letter will tell the person using your photo to stop using it (cease) and not to use it again in the future (desist). If this letter does not work, a student should seek legal representation.
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