Students at my high school hire professionals to take their senior photos for the yearbook. If the school wants to use those photos for non-yearbook purposes, does the school need the photographer’s permission?

Usually, when a photo is taken by a photographer and used without the photographer’s permission, the use of that photo would be a copyright infringement. Here, for example, the photographer taking senior photos allows the student and their family to purchase copies of the photos, but the photographer still owns the rights to the photos.

A student may purchase the right to use the photos in their school yearbook, but the school can’t use the photos for any reason they want, such as for banners, a student newspaper, or online videos or slideshows. If the school wanted to use the photos, it would usually need to get permission from the photographer, unless the use is considered fair use.

The Fair Use Doctrine allows people to use copyrighted material without the owner’s permission, but only in certain circumstances, which we will discuss below. However, it really depends on how much of the copyrighted material is used and why it’s being used.

How to tell if fair use applies? 

For an in-depth answer on what fair use exactly is, see our Q&A, “What is Fair Use?” To determine whether the use of a copyrighted material is considered fair use, you must look at the following factors:

1. Why and how the copyrighted material is being used;

2. How creative the copyrighted material is and the amount of protection it gets;

3. How much of the copyrighted material is used; and

4. The impact that the use of the copyrighted material will have on the copyrighted material’s economic potential.   

If a school were to use a student’s photograph for non-yearbook purposes, it is likely factor 2 would weigh in favor of the copyright holder (the photographer) because photographs are highly protected forms of creative expression.        

Factor 3 would probably also weigh in favor of the photographer because the entire photograph of the senior is being used, compared to only a small portion. The question will really be whether the photo has been transformed, whether the message and meaning of the photo has been changed.

Ultimately, the question of whether a school can use a student’s school photo for non-yearbook purposes will turn on whether the photograph is being used for educational purposes or for commercial purposes (such as if the school is using the photo for advertising or other money-making purposes) under factor 1 and whether the school’s use is transformative of the original. It will also depend on factor 4 and whether the use of the photograph will have an effect upon the potential market for or value of the copyrighted photograph. In other words, could the photographer have sold the photo for the same reason the school is using it?

So what’s the answer?!

Normally, when the use of a copyrighted photo is for educational purposes, transformativeness is less important. But once the use becomes commercial, courts are less likely to allow the fair use defense to copyright infringement.

So, if the school were to use the photo for educational uses only, such as for the school newspaper or banners hanging in the hallway, the school could probably use the fair use defense and use the photo without the photographer’s permission. This is because the school is using the photo for purely educational purposes, and there is no commercial use.

However, if the school used the photos for advertisements, fliers, promotional videos, etc., to attract new students or funding, a court will be much more likely to find copyright infringement. There is no clear answer to your question because it really would be up to a court after the judge weighed the factors, but if you are just planning on using the copyrighted photo in the yearbook or the newspaper to show that the student is a member or the debate club or band, you are probably going to be safe from a copyright infringement claim.