The debate over who owns a photo — the school or the student who took it — is one that comes up time and time again.
Principals generally fall back on two contentions for why the student’s photo belongs to the school: the student took the photo with school equipment, and the student can be considered an employee of the school since he or she receives academic credit for class.
However, neither of these concepts are legitimate reasons for a principal to take a photo from a student or journalism program, experts say.
Adam Goldstein, attorney advocate for the Student Press Law Center, said when Congress rewrote the Copyright Act in 1976, it set the standard for who owns photos.
Generally, the person who creates a photo (or a news story or other creative work) owns the copyright to it. Goldstein said the only time a photo belongs to someone who did not create it is in the context of a traditional employment relationship or in the context of a “work made for hire” contract.
He explained further that under the previous definition of work for hire, it essentially meant someone who did something on behalf of someone else. This was a very broad concept, he said, and caused problems in the music industry because bands or musicians would sell hundreds of thousands of albums but not see any of the money because it would go to their producers.
“This happened frequently enough that they changed the definition,” he said.
The act now specifically requires a written surrender of rights before the work of an “independent contractor,” such as a photo stringer, can become the property of the publication.
Regardless, there are still misconceptions about the amount of control school officials have with scholastic photojournalism around the country, according to Logan Aimone, executive director of the National Scholastic Press Association.
“I think there’s a transfer of the idea that this is work created for a class and therefore somehow people think — obviously wrongly — that it should be property of the paper,” he said.
Katie Wright, journalism adviser at Crete High School in Crete, Neb., came across an ownership issue when the school wanted to use one of her student’s photos on a fundraising card for the school baseball team.
Wright said she told the company she needed to get student approval before handing over the pictures, but the principal said the pictures were the school’s property in the first place since they were taken on school equipment and stored on the school’s servers.
Wright said she found a model student media contract created by the SPLC that specifies when it’s okay to use student work, and showed it to the principal.
After explaining how this would be an easy way for the students and the high school to reach an agreement for future projects, the principal conceded quickly, she said.
She said she explained to the principal that she wants her students to understand the issue of respecting others’ work and the school should do the same for its students.
“For me, it was just about going through the right steps to show the kids that as much as we hold them accountable for not using others’ work without permission and understanding property issues, we respect their work in the same regard,” she said.
Wright said she also has a strict plagiarism policy she expects her students to abide by. Plagiarism, like copyright, is a property issue that she wants her students to be well versed on.
“I think it’s so important to show students how to and why we respect other people’s work, because it is a property issue,” she said. “They are instructed time and again on how to take others’ work and either give them credit or paraphrase it [or] recreate it to make it their own unique work. If they can’t see why that’s important, we go through the process of explaining how taking other people’s work without permission is stealing and cheating.”
Goldstein said administrators often don’t understand the nuances of copyright, adding it is a widespread misconception that schools automatically own photographs.
“It could actually be copyright infringement if the principal sells the photo without the student’s permission,” he said, adding the principal should hire a professional photographer if the principal wants to sell the photo and make money off of it.
“If there’s some legitimate reason schools need to use the work of their students, then they should ask the students for permission,” he said.
Goldstein said the copyright definition makes no mention of the rights to a photo or song belonging to the person or company that provided the equipment to produce the product.
“That literally does not matter,” he said. “If I steal your camera and take a bunch of pictures and then I get caught, go to jail and my pictures are used as evidence, they’re still my pictures.”
Aimone said he wants more journalism educators to consider the copyright issues in advance.
“I wish that they would be proactive and utilize some sort of license agreement before they start the school year,” he said.
Not every situation is resolved as smoothly or as quickly as Wright’s.
In September, administrators made a student journalist from Kickapoo High School in Springfield, Mo., turn over his photos after another student was injured during a start-of-the-school-year event.
After Chase Snider, executive editor of The Prairie News and its companion website, was told to hand over his photos, he enlisted the SPLC’s help and was referred to Kansas City attorney Patrick Doran.
“My personal photos that were demanded from me by our administration and school district on September 1st, have still not been returned to my possession,” Snide wrote in an e-mail. “And I don’t know when they will be given back to me.”
Doran wrote in an e-mail that his “hope is that any of Chase Snider’s personal property that may be in the possession of the high school or school district will be returned to him and that reporters at the award-winning [Prairie News] can cover news stories, including breaking news, of interest to the Kickapoo community without undue interference from the administration.”
Snider is currently consulting with Doran about his legal options.
Goldstein said the main reason principals often attempt to gain control over student photos — especially if the photo is damaging to the school’s image — is because if they own a photo, they can get rid of the photo.
“Ownership is control,” he said. “If you own it, you have the right to not publish it or to destroy it.”
By Chelsea Keenan, SPLC staff writer