Yearbooks are massive undertakings — I’m sure I don’t need to tell any of the yearbook editors, advisors, or publishing companies that. A completed yearbook represents thousands of hours of work, including reporting, writing, photography, design, layout, printing, and sales. Given the magnitude of that investment, you would think that the editors of the book would have an automatic right to protect their work.
You’re right, morally speaking. But to protect the yearbook legally, you need to do a little bit more.
While the contributors to the yearbook do own the book, the natural state of that ownership is so fractured that it would be very difficult to assert it in a court of law. And you might need to.
In the last few years, companies have been buying old yearbooks, scanning the contents, and posting them online, then selling access to the scanned books. Generally speaking, these books are ones that have fallen into the public domain, usually for not complying with the formalities that used to be required to create a copyright. (Since 1989, a copyright vests in the work the moment it’s created.)
But some schools have been contacted by people looking to post modern books on their websites. That’s an opportunity for your book, but to really license it effectively, you need to ensure that the license actually means something—that it prevents third parties from using it against your licensee.
So let’s look at what happens if you don’t enter into an agreement to secure the copyright. That should help clarify why this agreement is a good idea.
What happens without an agreement
It’s the first meeting of the yearbook staff. The editor-in-chief gets up and says, “This year, two or more of us are going to prepare works with the intent that they should be merged into inseparable or interdependent parts of a unitary whole!” (Okay, my memories of high school are a little bit fuzzy. I was on a lot of allergy medicine.) Or maybe the editor says something more like, “We’re going to have a great year and put out a great book together!”
Either way, the editor is expressing the intent to create a joint work.1 While some parts of a yearbook, like the senior portraits, have copyrights that can be separated out from the book, the book as a whole is a work created by all the authors who contributed to it.
The problem with joint work status is that a joint author is entitled to enjoy 100 percent of the rights of an author.
For example, let’s say you have 20 people on the staff who contributed to the book. Any one of those twenty people has the right to license the book to a third party or to authorize its distribution online, provided they do it as the book was originally laid out.2 If that person licenses the book for money, they have a duty to account financially to the other authors, but they can authorize non-exclusive licenses—without discussing them with the other editors.
Or he or she could post the whole book on social media. That person can do anything an owner can do, except grant exclusive licenses.
This also means that the editor-in-chief can’t grant an exclusive license to anyone without getting the other 19 authors to consent in writing. If someone approaches you the year you make your book, that’s not so tough. But if they approach you five years later, you might not know where 19 people moved after college. And that could sour the whole licensing deal.
And all of this assumes someone even bothers to ask to take the book. If someone illegally takes the book, you couldn’t sue until the work was registered. You’d need the authors to register with you, and they’d probably all have to be parties to the case. And then, if just one person changed their mind and permitted the use, you’d lose.
So who should control the book?
There aren’t that many options, really. You don’t want the school or the adviser (a school employee) to own or control the yearbook’s content, because that might give them a far greater ability to censor the book by finding ways to limit its distribution.3 That means the power should be in the hands of one editor or a group of editors or staff members.
The natural first step is to limit control of the book’s copyright as a collective work to the editors. That is, staff members will continue to own their individual contributions, but the editors who decide what appears in print would have the right to decide where else that content appears.
Using our hypothetical staff again, let’s say five of the 20 staff members are editors. That makes it easier to collaborate, to be sure, but we still end up with the post-graduation problem of not keeping in touch five years after graduation.
And, really, do you even want people calling you five years after graduation to ask you for permission to put the book online? You might not even be in the state anymore. Aren’t the people actually attending the school today in a better position to decide what’s in the best interests of the publication? When you contributed work to the yearbook, were you intending to benefit the school community, or were you waiting for the opportunity to split a modest licensing fee five ways after college?
My thought is that the current yearbook editors in any given year ought to have the authority to make decisions about reprinting prior years’ books. That’s essentially what happens at most publications, after all; if I want to reprint a copy of a 1974 edition of The Washington Post, I call current owner Jeff Bezos, not the 1974 owners the Graham family.
Why not just transfer the copyright?
Because it’s harder, believe it or not, and it’s unnecessary to achieve the goals we’re trying to achieve.
This is the objection I hear most often: “Your license is really complicated, and I don’t think students need to own their work anyway, so why not just transfer the ownership of the individual works to the editors altogether?”
There are both legal and ethical reasons why I think licensing is better than transfers of ownership here. The ethical one is easiest to explain: I think requiring students to give up their work as a condition of participation on an extracurricular activity is unfair. In fact, at a public school, it might raise legal problems of its own.4
I don’t care that you think the “outside world” works that way; the “outside world” compensates students with a paycheck. If you want to buy content from students, I think that’s great, but demanding they surrender it to engage in a school activity is shady and obnoxious.
The legal reasons are a little more nuanced. The Copyright Act tells us that the ownership of a work vests in its author or authors in every case except two.5 One is an employment relationship (which volunteering will almost never create) and the other is when a signed work for hire agreement exists. So that requires, in essence, a formal contract.
The other option is to transfer copyrights in works that have already been created; that, too, requires a signed writing.6 So every possible method of rearranging the rights here—whether you want to transfer ownership or not—requires some kind of documentation.
As it turns out, not everyone who works on a yearbook is 18. And this takes us to an important distinction between contracts and consent: while minors can void most contracts until their 18th birthday, the consent given in a contract is not as easily voidable.7 Counterintuitive though it may be, the most durable agreement is not necessarily the one with the strongest language.
The unincorporated association
While it makes sense to have the current editors of the yearbook in charge of licensing old versions of the yearbook, the law needs a little bit more structure to make it happen in the eyes of the law. We need some way to describe who those editors are to make clear that it’s a finite group of people with some kind of structure.
The problem of not having a structure is best illustrated by conflicts within family-owned businesses. For example, let’s say a brother, a sister, and their cousin co-own a business selling lemonade from a secret family recipe.
The sister buys the sugar and lemons and builds the stand and paints the sign; the brother rides his bike from playground to playground, telling people to come buy the lemonade. The cousin carries water from the house.
Now imagine that the lemonade is so good, the ice cream stand in town wants to buy the recipe. Who has the right to sell it? Or imagine that the family has a falling out. Who gets to keep the name of the business? Or imagine that the brother and sister go off to college and the cousin wants to continue the business with other cousins. Does the cousin need permission? If the brother uses money from the lemonade stand to fix his bike, can the sister use the bike to go to the store without his permission?
These are messy questions without easy answers because the business lacks a structure. We don’t know how to tell who makes decisions and where that authority stops, or how new people are brought into the decision-making group, or what the business actually owns or doesn’t own.
The good news is that you’re probably already better off than the lemonade stand; most high school yearbooks have some kind of policy manual or bylaws that define who the editors are, when those editors are selected, and some definition of the role of an editor. You might also have a mission statement or statement of purpose that talks about the goals of the yearbook activity. These are all the beginning elements of a structure that the law calls an unincorporated association.
While the actual definition and contours of unincorporated associations vary from state to state, speaking generally, an unincorporated association is a group of people working together to accomplish a shared goal. That hopefully already describes your yearbook, but you still want to more clearly define this structure, because the effectiveness of this agreement rests primarily on the existence of this unincorporated association.
In the steps to actually copyright the book and execute the agreement, you’ll have to pick a name for this unincorporated association of editors; once you do, it’s probably a good idea to go back through your policy manual or bylaws and two do things. One, add this name to your manual, along with a clear statement of intent that the editors are working together to achieve the goals in your mission statement; two, make sure your manual has clear definitions of how someone becomes and editor and what happens at the end of their term. (And if you don’t have a manual, well, back up and start there.)
Okay, I’m convinced. What now?
Now, we can start the process of registration. The basic steps for this process are outlined on the Copyright Office’s website, but read that together with these instructions, which will explain how to fill in some of the boxes.
The goal of this process is to register the yearbook as a compilation work owned by the unincorporated association of editors. A “compilation work” is a copyright registration that protects works brought together into one new work; in the case of a yearbook, the registration protects the book as an assembled work, while the individual contributors own their photographs, articles, etc.
A few quick steps up front:
- Pick a name for the unincorporated association of yearbook editors. Something simple and memorable will be easiest. There are no points for originality here — if your yearbook was named The Annual, “The Annual Editors” would be fine.
- Set up an e-mail address for the unincorporated association. Big picture, you might want lots of other things, like a bank account, but at least start with a way people can talk to the organization. The Editor(s) in Chief should have that password; the adviser probably shouldn’t. Each year, the editors should pass access down to the next set of editors.
- Decide if you’re registering the book before publication or after publication. If registering before publication, register the work as a literary work; you will need to upload a copy of the yearbook electronically. If registering after publication, register the work as a single serial issue; you will need to mail two copies of the physical book to the copyright office.
- Before filling out the forms, contact the SPLC to ask about laws specific to your state. Each state has its own law covering unincorporated associations. Give us a few days to look up the law in your state and make sure this process is right for you.
- Have a credit or debit card you can use to pay for the registration fee. If all else fails, see if you’re allowed to use yearbook funds to purchase a prepaid debit card, but in this day and age, presumably the publication has some way of paying electronically.
In following the Copyright Office’s instructions, here’s some additional information to know:
- If registering as a literary work, the series title is the name of the yearbook, and the title of the work is the theme of that particular yearbook. For example, if the yearbook is named The Annual, then the series title is “The Annual” and the serial title is this year’s theme, “Enchantment Under the Sea.”
- If registering as a single serial issue, the title of the work is the yearbook name, the publication frequency is “annually,” and the issue date is the year the yearbook is actually distributed.
- If registering after publication as a single serial issue, date of first publication is the date that the book was actually delivered into the hands of someone other than a yearbook staff member.
- The organization name is the name of that unincorporated association you picked earlier; the name that represents the editorial board.
- Under “authors,” don’t fill in the name of any staff members! Names you put here are transferring ownership of the work to the unincorporated association. The contract the SPLC provides doesn’t do that—it only gives the association a license.
- For transfer statement, you want the option: By written agreement(s) with individual contributors not named in the application/certificate.
- For material excluded, check “text,” “artwork,” and “photographs.” The editors aren’t claiming to own these; they’re just licensing them, so they should be excluded from the claim. For material included, check “editing,” “compilation.”
- Under rights and permissions information, put the name of the unincorporated association and the association’s e-mail address; use the street address and phone number of the school’s yearbook office.
- For correspondent, list the current editor in chief’s personal information.
- Don’t get special handling. It’s expensive and if you haven’t published the book or just published it recently, you probably aren’t in a hurry yet.
- If registering as a single serial issue, don’t forget to print out a mailing label.
What happens next?
Nothing interesting, for a while. Electronic registrations take between 12 and 16 weeks to process at present. But you can certainly start looking to license your book once the registration is filed; the registration is legally effective on the date the copyright office received all the required elements, even if they haven’t been processed yet.8
Once your registration comes through, you’ll get a registration number, and you’ll want to keep that number handy. If someone is posting copies of your book online without permission, you want that number so you can include it in a copyright infringement notice to the site hosting the content.9
Once the registration is pending, you could even start contacting companies that offer yearbooks online and see what they’ll offer your unincorporated association for the right to put your book online. I wish I could tell you what a suitable licensing fee is, but this area is so new that I have no idea what is being offered on the market. Please call me to let me know what you hear, though, and I’ll tell you what I’ve heard when you call.
Another option is to put the content online yourself on a password-protected website and offer access as a bonus for purchase of the physical book. You can tell students that no one else online will have the book—and you have the registration to make sure you can keep that promise by stopping infringers. All of the marking in the world from sites that post yearbooks won’t cut your sales if you can tell people that these sites won’t have their yearbook.
Whatever you decide to do, you should feel good about the fact that you took steps to protect the yearbook’s content. We don’t know what value these books will have in future years and we don’t know what delivery students will expect in the future, but at least now, when future yearbook editors are facing those questions, they’ll have your book—at least until the copyright expires in 95 years.
Adam Goldstein is attorney advocate at the Student Press Law Center.
- 17 U.S.C. § 101.
- They couldn’t separate out the parts because the segregable parts have individual copyrights separate from the copyright in the overall work. See, e.g., Greenberg v. National Geographic Soc’y, 488 F.3d 1331 (11th Cir. 2007).
- Note that this wouldn’t give a school any greater right to censor the book, and it would still be unconstitutional if they couldn’t meet the applicable legal standard for censoring your type of publication in your state; but proving the motivation for the censorship can be hard, and as content owners, the school would not have to explain decisions to deny licenses. Neither do yearbook editors, by the way. Usually the best response to a request for licensing that you don’t ever want to grant is just, “no thank you, we are not interested.” If different terms would appeal to you, you can negotiate the terms, but if you’d never grant the license, you aren’t obligated to explain why.
- Requiring someone to surrender ownership of their work as a precondition of receiving a prepaid government benefit is hard to distinguish, legally, from a bully demanding a student’s dessert before he enters the lunchroom.
- 17 U.S.C. § 201.
- 17 U.S.C. § 204(a).
- This is really complicated and I’m not sure how simple I can make this, so feel free to ignore this footnote and take my word for it. That said, here’s an example to attempt to illustrate why voiding a transfer as a minor is easier than cancelling a license as a minor. Let’s say the Hypothetical High Harbinger editors enter a work-for-hire contract with 16-year-old J. Janet Studentson for Janet to contribute works to the 2013-14 Harbinger. The editors then start to negotiate with a website to print the book online. In 2014, before the web deal is complete, 17-year-old Janet finds out that the yearbook editor was totally talking to her ex-boyfriend at the Spring Fling and like right in front of everybody touched his arm and who does THAT SKANK think she is because everybody knows he’s just going through a tough time right now because he didn’t make his weight class in wrestling and once he works through that he’s going to totally get back together with Janet?! So naturally, Janet does the first thing that comes to mind and confronts the editor in class, saying, “I’m voiding the work-for-hire contract, and I want my stuff back!” Well, the printed book is done, and the consent to the contract before it was voided wouldn’t prevent that work from existing. But it’s less clear that new copies of the work could be made with Janet’s work in it, particularly since the contract might not have been valid in the first place. (Quick education in basic contracts: a contract requires offer, acceptance, and consideration. Consideration means the transfer of something of value, which is what distinguishes a contract from a gratuitous gift. Unless Janet was getting something, here, this might never have been a contract at all.) See Restatement (Second) of Contracts §§ 2(1) (promises) and 3 (bargains) (1981). On the other hand, let’s say Janet still owns the work, but grants a license to the editorial board to use it as they see fit, then agrees not to use it herself for a limited time. Assume everything else stays the same: that editor still touches her boyfriend’s arm (because geez, Janet, take a hint, he’s not with you because he doesn’t want to be with you because you are totally a jealous stalker and probably have a shrine to him in your closet and he wanted to end it before you Swimfan’d him) and Janet still tries to revoke the contract. Ordinarily, you would say that a license is more likely to be gratuitous when it isn’t in a contract, but when a minor can void the contract, the revocability of the license would hinge on the amount of rights granted (more rights means less revocability), the duration of the license (longer means less revocability), and the reasonable reliance of the grantee on the consent. While it’s not a slam-dunk, one more fact makes this preferable: courts are supposed to disfavor transfers and be more lenient with licenses. For more on the distinction between assignments and licenses, read the fun and brief opinion Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) (low-budget horror producer who paid for effects footage but did not get a written transfer can’t be sued for copyright infringement because while lack of writing precluded ownership, transaction of events alone created non-exclusive license sufficient to defend infringement lawsuit).
- See Frequently Asked Questions, http://www.copyright.gov/fls/sl09.pdf (last viewed Sept. 20, 2013).
- For more on this process, see “For Web editors: all about OCILLA,” by Mike Hiestand, available at http://studentpressblogs.org/acp/for-web-editors-all-about-ocilla/.