First, I question the ability to punish someone from photos alone. I’m sure there is more to the story, but a teenager holding a beer can does not proove drinking. If someone corroberates that event, maybe. A video could show the actual event of drinking (although you’d of course not be able to *test* the substance ingested).

Second, the real issue is about fair use. For fair use, you have to look at each individual party and what they stand to gain/lose/etc from the actions. If, for example, pictures were selectively (or otherwise) chosen by a parent for the purpose of benefitting their child – say the son is a 2nd string QB and the starting QB is pictured drinking – then you might argue this is not fair use. But assume that a parent is just picking out every photo they find and submitting it to the school – where is the violation? There is no gain, right? They aren’t selling the pictures, or using them in advertising for example.

Again, we always return to the definition of fair use. By its very definition, it is quite open to interpretation. In this case, the action is hardly transformative, the work has been published, the substantiality of the product taken could be deemed as limited (a few of tens of thousands of pictures on myspace) or the “heart” of the matter (ie key pictures only). But most likely here the relevant factor is the “effect of use on the potential market.” As a jurist it would likely be difficult to convince me that the copyright holder (picture taker) was developing or maintaining a “market” and even if so the limited use of such pictures for this stated purpose would not likely infringe.

None of this addresses, unfortunately, the idiot(s) who posted these pictures in a public place and same idiot(s) caught doing said deed. Hey, kids, if you’re gonna do something stupid, don’t let your friends take pictures of said act and put it online!

As for the kid’s pics, wouldn’t an important distinction be if his parents, or someone else’s parents, confiscated the photos?

Also, are we sure the kid actually holds the copyright? I’m not so sure that the copyright on photos taken by a minor resident in his parent’s house, with equipment paid for by his parents, and stored on parental property, would not belog to the parents in the first place.

How far can a TOS be enforced if the minor person subjected might be in a state that prohibits such agreements without a parent or guardians explicit approval?