Out of time and out of photos, the editors of The Windup, the yearbook at Walter Johnson High School in Bethesda, Md., needed more pictures of their classmates to fill blank pages. So they logged on to the wellspring of party photos and candid snapshots on the social networking site Facebook.com, republishing photos students had posted online — without credit or permission.
When students opened their yearbooks in June, they were startled to see pictures they thought were theirs from a Web site they thought was protected.
“You don’t expect to open the yearbook and see all these pictures that you thought only you were looking at or a few of your friends were looking at,” said Susannah Green, a junior who wrote about the controversy for the student newspaper, The Pitch. A picture on Facebook of her and a friend at a dinner was reprinted in the “Homecoming” section of the yearbook, but Green said she did not attend the homecoming festivities.
Green’s expectation that glimpses of her personal life shared in a semi-public Internet community still would be treated as private coincided with the attitudes of her classmates at Walter Johnson, as well as students at other schools. Just across the Potomac River, the Forest Park High School yearbook in Woodbridge, Va., also printed pictures taken from students’ MySpace.com pages.
Forest Park senior Katie Valliere was surprised when a picture that was posted on Valliere’s MySpace page — of her and a friend at a Hawaiian luau party last summer — was reprinted in the yearbook without her permission.
“It just seems like a really bad trend is happening,” she said. “I feel like people are using the Internet as an easy route out.”
Now the sixth-most visited Web site in the country with more than 24 million active users, Facebook’s popularity and broadening reign over the youth social scene sets students’ online behavior on a collision course with other aspects of their lives, raising questions and sparking controversies while they, their parents, their teachers and administrators, and the law scamper to keep up.
‘No one will care’
The students’ familiarity with Facebook as a source of mostly benign and frivolous fun seemed to set it apart from the consequences of the real world, community members said.
“I talked with a couple of kids about it and they just said, ‘We just download pictures from each other all the time,’ so it’s really not seen as ‘Well, you’re not supposed to do this,’” said Walter Johnson Principal Christopher Garran.
Green said it was a desperate move.
“I don’t think they really saw the consequences,” Green said of the yearbook editors, who did not respond to requests for comment. “They just thought, ‘We’re out of time and we need to fill up space. No one will care.’”
But they cared.
“People felt that their privacy was being violated because they put pictures up on Facebook with the intent of having them solely being viewed by a few friends,” said Lindsay Deutsch, who graduated in June and was co-editor of The Pitch. “There’s a big difference between posting up photos for friends and having them being archived in the history of Walter Johnson for anyone to see.”
The pictured students were more concerned with the controversy’s social significance than any violation of their rights. But from a legal perspective, the incident illustrates the application of both privacy and copyright law.
Private eye
Generally, images posted on the Internet are not considered private because there can be no reasonable expectation of privacy. A picture posted online is legally treated the same as a photograph displayed in a public building or park, experts said.
“Every kid in America had better figure this out: When you post stuff to a public Web site, a social networking site, any expectation of privacy you had in that photograph is gone, and you had better realize that,” said Charles Davis, a professor at the University of Missouri at Columbia School of Journalism. “If you put it on Facebook, that’s like putting it on the corner of First and Main street on a stop sign.”
Some students may trust that Facebook’s adjustable privacy settings will keep their images among only friends and do not expect their Facebook profiles to be visible to just anyone.
“You can make your Facebook profile private and protected so only your friends can see it,” Green said. “So with that degree of privacy in mind, people felt a little taken aback to see their pictures there [in the yearbook] where anyone can see them.”
But advocates said it is unlikely that a court would find that expectation reasonable.
“One thing our students seemingly cannot grasp is that the World Wide Web is just that — worldwide, and anyone from your best friend to your mother can see it,” said Matt Daugherty, the journalism adviser at Orange Glen High School in Escondido, Calif. “However, recently MySpace and Facebook added new layers of privacy control to their accounts. What this has done is make the issue a little more complicated.”
Although that privacy argument may not hold up in court, it still may influence ethical considerations that render Facebook photo’s use imprudent, if not illegal, journalism advisers said.
“Even if you can find a way to do it legally, almost always it’s not going to be the ethical thing to do,” said Peter LeBlanc, the 2006 National Yearbook Adviser of the Year, who said he has advised his students not to use any images from the Internet. “I would say to them, ‘If there was a picture of you and it was on the Internet and it’s not necessarily something you would have wanted in the yearbook because it’s a different community that you’re sharing that with, and then that picture without your knowledge shows up in the yearbook, how are you going to feel about that?’”
Daugherty said he would consider pictures on a public profile “fair game,” but if the profile had elevated privacy settings, “the fact that the user took the time to limit access to their profile at all implies that they are not for public use,” he said.
Copyright infringement
As for intellectual property rights, the second legal realm at play in the controversy, reproducing images posted on Facebook, or anywhere on the Internet, without the owner’s permission violates Facebook’s terms of use and could constitute copyright infringement, said Adam Goldstein, attorney advocate for the Student Press Law Center.
All works are subject to copyright “from the moment they are fixed in a tangible medium of expression,” he explained. In this case, the photographer owns the copyright of a photograph as soon as it is taken. Presumably, the person who posts a photo on Facebook also took the photo and, therefore, owns the copyright.
The problem arises, Goldstein said, when someone else publishes the picture elsewhere without the owner’s consent.
But that should not deter legitimate uses of online content.
A legal exception, called fair use, is permitted when the image or the copyright owner of the image is the subject of news or commentary, Goldstein said.
For example, if writing about the phenomenon of students using social networking sites, using images posted there would probably qualify as fair use, Goldstein said.
But even if the law permits that use, some would still ask for permission.
“If the spread were on MySpace, I think using pictures posted would be, obviously, very appropriate, but under this condition: the student whose page it is and the subjects give their consent,” said Matthew Bean, the yearbook and newspaper adviser at John Overton High School in Nashville, Tenn.
At Bowie High School in Bowie, Md., the 2006 yearbook included a spread on the rise of MySpace, incorporating photos and words from students’ MySpace pages but with their permission.
“I have been teaching my students to treat MySpace and Facebook like we would pictures that are brought to us by a student and get permission,” said the school’s yearbook adviser, Jonie Lehmann. “It is ethical to use online images, as long as we treat them like other images.”
Advise and consent
But the student editors of The Windup were not experts in privacy and copyright law. They had never taken journalism classes, and they had a long-term substitute adviser while their adviser was on maternity leave.
Given her absence, LeBlanc said he could see how the controversy was an accident waiting to happen.
“There’s already so many problems around stuff that’s posted on the Internet and schools trying to handle that. It’s just a powder keg,” he said. “These things are going to happen because kids are kids, and they’re going to make errors in judgment, and that’s part of the education process.”
But copyright law offers no solace for unawareness. “The curious thing is that it’s one of the few laws that makes no exception if you thought you were OK or didn’t think you were breaking the law,” Goldstein said.
So with no defense in not knowing the law, the school’s principal, Garran, sees education as the way forward.
“We probably could have done more in-house to educate students about the use of these things,” Garran said.
Davis said to prevent this from happening again, rules must be established.
“This is one of those editorial policies that probably needs developing, that says ‘We can’t yank stuff off of Facebook when we’re in a jam,’” Davis said. “That’s just sloppy content generation, like, ‘We need to kill some space, let’s go grab something.’ That’s never a good idea.”
Garran also said he plans to expand the journalism education available to yearbook staffers. “We sometimes have speakers come in and talk about journalistic ethics with our student newspaper kids, who are really sort of on top of it, but we don’t really do that with our yearbook students,” he said. “We’ll definitely open that up so that when people speak with our student newspaper kids, they’ll also speak with our yearbook kids so that all our student journalists get some of that education.
“I guess we think of yearbook and student newspaper differently.”
But yearbook staffers are also journalists, and LeBlanc said having them take a journalism prerequisite is preferable.
Goldstein agreed that an exposure to journalism ethics would help schools avoid incidents like these.
“One of the first things students learn when they study journalism is, of all the things you can do with a pen, there are some you should and some you shouldn’t,” he said.
Making mistakes can help teach that lesson, too, Garran said.
“They’re good kids, they just made a judgment call on doing some things — probably some stuff they shouldn’t have done, but I think they’ve learned from it,” he said.
In that sense, working on a student newspaper or yearbook is a unique opportunity, LeBlanc said. “The great thing about student publications is that the ramifications are always so real that I think that provides a learning lesson for these kids that you can’t get in any other form in high school.”