RAQs: Recently Asked Questions

Topic: Music used for virtual school Halloween parade - 10/23/2020
The elementary is planning a virtual Halloween parade this year. The students will parade through ...
Posted: Friday, October 23, 2020 Permalink

MEMBER QUESTION

The elementary is planning a virtual Halloween parade this year. The students will parade through the building in costume. As they pass through the entrance hallway, there will be a video camera live-streaming the parade via zoom (to families watching from home). The parade committee would like to play a purchased CD of spooky music in the background of the video.

Does this violate the music copyright?

WNYLRC ATTORNEY'S RESPONSE

In the spirit of the season, and the answer I must give, this answer will be a modified version of a scene from Macbeth.

[Cue sounds of wind, rain, and small children trying to line up while thinking about candy and their itchy "Frozen II Elsa" costume.]

ENTER THREE WITCHES

FIRST WITCH: Educator!  I sense thou wouldst put on a show!  And Zoom it to demesnes beyond thy institution!  But if the music is protected by copyright and the school does not have a license to use the music in that manner it will be a violation of the copyright!!!

SECOND WITCH:  And, Educator, know this, as well! The Zoom terms of use state: "Zoom may deny access to the Services to any User who is alleged to infringe another party's copyright!" So be warned, or you be twice-condemned for the foul deed of infringement, by both the copyright's master, and the Powers of Zoom!!!

[Lightning.  Thunder.]

THIRD WITCH:  Ahem.  Of course, you'd have to get caught, first....

[Pause.  The cauldron bubbles.  FIRST WITCH and SECOND WITCH give THIRD WITCH the side-eye.]

THIRD WITCHAhem.  Of course, you'd have to get caught, first....

FIRST WITCH and SECOND WITCH:  Gasp!

THIRD WITCH: What? We're witches!  We have to be sneaky, why do you think we're camped out here in the woods?  And seriously, do you think in the midst of everything happening on Zoom, someone's going to notice?  The world is going so crazy, I'm expecting it to rain toads at any moment!  Give this poor Educator a break.

FIRST WITCH:  Oh, Alecto, you always were a rebel.

Okay, back in the real world...

Sadly, my three witches are right, and this is the answer I have to give.  Since the parade won't be a part of a class, there is no TEACH Act exception, so transmitting the music via Zoom is just like putting it out over a streaming service or live TV: a no-go without permission[1].

That said, I dug around in my cauldron, and I can offer this possible solution:

Round about the copyright go

In the creative solution throw

Songs that "copyleft" be

Can help thee celebrate Halloween

For works freely used and easy got

Search "Copyleft Halloween Songs," and find a lot.

Not very much toil and trouble

"Copyleft" works make music bubble!

 

Just in case my Shakespearean verse is too obtuse, what I'm saying is: Hop on your favorite search engine and type "copyleft Halloween songs."[2]

What will this do?

For those of you who don't know: "Copyleft"[3] is slang for: "I could own and control this copyright, but I am so cool, I am letting you use it, so long as you let others use it, too."  Meaning: "copyleft" work is free to use, by anyone, so long as whatever you generate using the work is also free to use.[4]

Now, as with all clever solutions, this one calls for thorough planning.  I listened to a few of the songs I found this way; not all of them are, as they say, "safe for work" (or at least safe for school) so check out the songs before you Zoom them out to parents. But since this is music the authors have proudly composed and released for free use by a wide audience, I suspect at least some of it will meet your needs.[5]

[NOTE: I don't know if it would work for your school, but this one by Frannie Comstock is hilariously clever[6] (and mentions lawyers)!  If nothing else, give it a listen just for a fun 5 minutes.  Here is that YouTube link written out: https://www.youtube.com/watch?v=XzvlAuUiM5s]

Happy Halloween!

 



[1] I am not weighing if this would be a "fair use."  That said, if the Halloween Parade and the music interacted to make a clever statement or unique medley of work, that could be a possibility.  But I've been to my kids' Halloween parades.  They are darling, they are not ground-breaking, incisive commentary on modern theatre.

[2] Don't search "Copyleft Halloween Music" because for some reason (which I am sure many of you information professionals out there know) it just wasn't as fruitful.

[3] Yes, this is similar to Creative Commons, but it is also different.  For more information, visit https://www.copyleft.org/.

[4] This means that if you make a movie out of the Zoom recording of the parade, using a Copyleft song, that recording needs to be Copyleft, too.

[5] Unless "your needs" involved specifically using the soundtrack to "The Nightmare Before Christmas."  In which case, I cannot help you, because Skellington Productions, Inc. owns all those copyrights, and I don't see them going Copyleft anytime soon.

[6] I don't know Fannie Comstock (is that even a real name?  It sounds like a person who makes candy while panning for gold), and I am not receiving any kickback for this endorsement of her ridiculously clever work.  Which makes sense, since there is no charge to use her highly amusing song.

Tags: copyleft, Copyright, COVID-19, Library Programming and Events, Music, Streaming, Zoom

Topic: Rights for music during graduation ceremonies - 6/15/2020
We have received several questions about setting graduation ceremonies to music and stre...
Posted: Monday, June 15, 2020 Permalink

MEMBER QUESTION

We have received several questions about setting graduation ceremonies to music and streaming them or recording them and sharing them with students. What are the laws surrounding this? There seems to be a lot of misinformation out there. Below is a question I received:

The slideshow for the [public] high school graduation is complete. [T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible? If copyright comes into play and we can't there will be no music added to the show. Please advise, We have viewed many other shows from various high schools and at the end of the show it simply states "we do not have rights to this music."

WNYLRC ATTORNEY'S RESPONSE

The need to migrate ceremonies online has created a tsunami of copyright concerns.  What is a ceremony without the right music?  But this question pertains specifically to high school graduations for public schools, so we’ll confine it to those institutions.

Readers, I have to be real with you: a newly minted Supreme Court Case, Allen v. Cooper[1], means public high schools (which are arms of the state) are arguably immune from liability for copyright infringement.  In that case, the court invalidated the “Copyright Remedy Clarification Act (“CRCA”), which had expressly removed state’s “sovereign immunity” to a copyright suit. So on a very pragmatic level, some public schools, colleges, and universities may be adding that to their risk assessment of questions like this.

But professional educators likely don’t want to do the wrong thing simply because they are arguably immune from being punished for it.  As Justice Kagan, writing in Allen and quoting an expert witness put it: “what State, after all, would “want [] to get a reputation as a copyright pirate?”   So we’ll proceed just as the member’s question suggests: that they want to do the right thing.

With that in mind, here is my answer to the question: “[T]he students would like to have songs from “High School Musical” added to the slideshow. Is this possible?

My first bit of guidance is to check the school district’s license with either ASCAP or BMI (this is the license that covers permission to play music at a high school dance). It may be that some streaming rights got thrown into your public performance license. This isn't typical, but you never know, and if you have the right clause in your contract your problem could be solved right away (and in fact, your problem never existed).

If there isn't a contract that already gives your school permission to use the song(s) as the member describes, your school needs permission. This can be done through any number of licensing agencies.

As but one example, the music to “High School Musical” is available for licensed streaming through the Harry Fox Agency:

Permissions from the website Songfile for "High School Musical"
 

(As can be seen, your school could even decide to use the karaoke version.)

The bad news is that it’s sort of a pain to obtain the license; you have to register and there is a fee.  Further information can be found at the link here: https://secure.harryfox.com/songfile/faq.jsp#faq2.

[NOTE: since a school district is one legal entity, it is also good to check and see if the district itself has an account already.  Signing up for a service like this does not need to be done on a school-by-school basis. Of course, this brings us to school policy and procurement issues, and for that, I refer to the attorneys serving the BOCES that serves your school!]

I hope the red tape doesn’t get in the way of the students having a good ceremony.  They have been through enough this semester.



[1] You can find the full text of the case and some commentary here: https://www.scotusblog.com/case-files/cases/allen-v-cooper/

 

Tags: Copyright, COVID-19, Emergency Response, Music, Streaming

Topic: Pomp & Circumstance public domain use - 5/27/2020
The song “Pomp & Circumstance” is in the public domain. Is it permissi...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

The song “Pomp & Circumstance” is in the public domain.

Is it permissible for students to play this music while being recorded and for the district to stream it live as well as distribute a link to the recording later?
 

WNYLRC ATTORNEY'S RESPONSE

Not only can the students play, record, and stream “Pomp & Circumstance,” but they can also create an original musical based on it, rap over it, score an original movie with it, and in short: do anything they want with it.[1]

While anyone graduating in 2020 deserves this kind of red-carpet legal treatment, not only can the students do it, but everyone else can, too.  That is the beauty of a work being in “the public domain.”[2]

Thanks, and may all your virtual ceremonies be joyous.



[1] That said, any publisher that has created and distributed its own version of “Pomp and Circumstance” with a specific arrangement, illustrations, instructions, etc. may own the copyright to that particular text, and it shouldn’t be duplicated via hard copy or scanning.  In a similar vein, any publisher that has issued a specific recording may own the rights to that specific recording, and that should not be streamed or used without permission, either.  But the composition of “Pomp and Circumstance” is in the public domain, so generating a student-created version of it is fine, and if the district is the one recording it, they (and the performers) own the copyright (see Copyright Office Circular 56)!

[2] “In the public domain” means “no longer protected by copyright.”  Edward Elgar, composer of “Pomp & Circumstance,” died in 1934, so even under the most rigorous scheme of ownership, the copyright to P&C has expired.

Tags: COVID-19, Emergency Response, Online Programming, Public Domain, Streaming

Topic: Online Library Programming (Any Type of Program) - 4/1/2020
Our library is arranging more online programming in response to COVID-19 closures and reductions.&...
Posted: Wednesday, April 1, 2020 Permalink

MEMBER QUESTION

Our library is arranging more online programming in response to COVID-19 closures and reductions.  What should we be thinking about in making these arrangements?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

 

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

 

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                                        [NAME]

 

Signed for Instructor on _________:_______________________

                                                                        [NAME]

                                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.



[1] I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.

[2] The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Live streaming a chair yoga program - 3/30/2020
Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in...
Posted: Monday, March 30, 2020 Permalink

MEMBER QUESTION

Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in person and would like to make it available during our COVID 19 closure. The instructor can live stream herself with payment and we'd like to open it up to anyone. Do we need waivers or disclaimer language on our website?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online chair yoga class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming but can pay those who offer library programming for free, so as the member says, this online chair yoga program should be open “to anyone.”[1]

In this instance, it sounds like perhaps the instructor has (perhaps) been paying for space in the library, while offering on-site or online classes for a fee.  In the new arrangement proposed by the member, the classes become a free library program.  This means the instructor can still be paid, but the payment should come from the library, while the on-line attendees tune in for free. 

The trick in this is to avoid any “fiscal hybridization;” in no event should the library host and promote the event, while the instructor gets some payment directly from attendees.

                                                               

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

CHAIR YOGA AGREEMENT

The [LIBRARY] (“Library”) and [NAME] (“Yoga Instructor”), a yoga instructor certified by [CERTIFYING BODY], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Yoga Instructor will offer classes in chair yoga (“Chair Yoga Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The Chair Yoga Classes will be a target audience of those who can benefit from online social gatherings to participate in routine chair yoga. 

To promote safe participation, at the start and end of every class, the screen will read, or the Yoga Instructor will say:

[INSERT Yoga Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

Chair Yoga is intended as a gentle but serious exercise for the mind and body.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please also know that Yoga, in general, can connect you to feelings that you may wish to address with your mental health provider.  Please stay safe during this time of social distancing and enjoy our class.]

Chair Yoga Classes will be promoted as a free program of the library and Yoga Instructor shall not charge individual attendees for these sessions.

Library will pay Yoga Instructor _____ per session. 

[OR] Yoga Instructor has agreed to provide this programming on a volunteer basis.

Yoga Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Yoga Instructor and Library shall be used during recorded or live-streamed Chair Yoga Classes.

Yoga Instructor agrees that Library may use their name, likeness, and image when promoting Chair Yoga Classes. Library agrees that Yoga Instructor may use its name, likeness, and image when promoting Chair Yoga Classes.

All sessions of Chair Yoga will be recorded by [INSERT] and the recording will be jointly owned by Yoga Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Yoga Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in Chair Yoga Classes.

Yoga Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                            [NAME]

Signed for Yoga Instructor on _________:_______________________

                                                                                [NAME]

                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to the promotion, the session, the recordings to comply with the Agreement, and top make enhancement based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

While there is very little risk of liability for personal injury during livestreamed chair yoga (compared to say, in-person “Acroyoga”…you should see the case law on that![4]), “chair yoga” is targeted to a population with some physical limitations,[5] so attention to these details is a good idea. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

And finally, the most important detail for busy library professionals scrambling to serve their communities right now…

 

6. Remember to breathe

…it helps with stress.

Best wishes for a good program, and happy utkatasana.[6]



[1] I also would not have a concern with it being restricted to cardholders within a system, or cardholders registering in advance to participate for free.

[2] The yoga instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

[4] Here’s a quote from a case, (Malouf v Equinox Holdings, Inc., 38 Misc 3d 1223 [Sup Ct, NY County 2012]): “The exercise during which she was allegedly injured called for her male partner to lie on his back with his legs in the air. She "was told to lean over his feet and put his feet on my pelvis and lean forward and hang limp like a rag doll balancing on his feet with his feet on my pelvic bone”…The next step "was to put our hands together and bring our hands behind our heads with our elbows up in the air" (id.). Then, "the dark-haired girl came and forcefully pushed my elbows behind my head and forcefully brought them together and I screamed Ouch'" (id.). Malouf had not asked for assistance (id. at 31).” 

Ouch, indeed.

[5] Please don’t tell my mother, who does chair yoga at New Hartford Public Library, that I have characterized her activity this way.  There is absolutely no limit to her ability to chastise me over the 180 miles between her house in New Hartford and my house in Buffalo.

[6] “Chair pose.”  One of my favorites.

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Showing movies in a school - 12/20/2019
The question, as a follow up to the Oct 31, 2019 post about showing movies and Swank. The schoo...
Posted: Friday, December 20, 2019 Permalink

MEMBER QUESTION

The question, as a follow up to the Oct 31, 2019 post about showing movies and Swank.

The school does subscribe to Swank and would like to show a video using Netflix. This is not for face-to-face instruction. According to Swank’s terms of use they are licensed by the movie studios to show any legally acquired version of the video. From Swanks’ FAQ Page (https://www.swank.com/k-12-schools/faq#whereCanIAcquire).

Regarding Netflix, this is there term of use:
Netflix Service 4.2. The Netflix service and any content viewed through our service are for your personal and non-commercial use only and may not be shared with individuals beyond your household. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable right to access the Netflix service and view Netflix content through the service. Except for the foregoing, no right, title or interest shall be transferred to you. You agree not to use the service for public performances.

My question- does Swank’s license allow for this OR does Netflix’s license stand even though rights are secured by the movie studio.

WNYLRC ATTORNEY'S RESPONSE

I must be very clear: Unless I obtained a written representation signed by an officer of Netflix, I would never advise a corporate client[1] to rely on the Swank umbrella license to show a video from a “personal and non-commercial” Netflix account.

Why is this?  Because the one license does not trump the other.

To illustrate this concern, here is the best analogy of I could come up with[2]: if it’s bow hunting season and I get a bow hunting license, I can bow hunt.  I can commune with nature, test my skills, and if I’m lucky, come home that night and make some venison stew.[3]

But if, while eating my dinner, the police stop by to investigate an allegation that I shoplifted the bow and arrows, they won’t say: “Oh, you have a license?  Sorry, back to your stew.”

The same principle applies here.  A Swank license can definitely allow your institution to watch a covered movie you lawfully obtain.  But the Netflix license quoted by the member does not allow the movie to be shown beyond the account holder’s “household.”  And the language makes it clear the account is for “non-commercial” uses.  In other words: a copy used to further institutional operations was not lawfully obtained. 

Unfortunately, Swank is pretty coy about this concern.  Here is the language from the link provided by the member:[4]

Where can I acquire movies after we receive our license?

You can use movies that are secured from any legal source (DVDs, digital copies or any other legal format). While we cannot speak for other companies, we recommend checking the terms and conditions of any streaming service used to confirm that they do not prohibit public performance.  [emphasis added]

Now, in copyright law, everything is up for debate.  If I put this topic on the table at a gathering of three copyright attorneys, I guarantee you’d get six answers (maybe seven).  And of course, attorneys love it when their clients test the boundaries of the law: it gives us a chance to engage in high-stakes, nuanced, and learnedly arguments—and sometimes, it comes with a paycheck.

But one thing most attorneys in the business world respect is risk.  There is a risk that Netflix[5] could view the use as unauthorized.  And I stated above, unless there is rock-solid assurance from the vendor (in this case, Netflix) that it is authorized, use of a personal Netflix account for an institutional purpose is just too risky. 

How does this play out in the real world?  Large services like Netflix look for “teachable moments,” to bring lawsuits.  They send out private investigators, track IP addresses, and look for evidence of broad misuse.  Once they gather the evidence, they select a victim, and sue[6] (although in the case of Neflix, Section 7 of the License allows for them to resolve the matter via private arbitration).

What is the protection against that?  An institutional policy that bars use of personal accounts for professional purposes. 

There are some approaches to this educational dilemma that do pass my “sniff test.”  Some colleges encourage students to get Netflix accounts if they are taking a film class, so they can watch movies at home.  Near as I can see, unless Netflix starts putting some new “not for class” terms in its license, this is okay (but does not extend to the entire class using one student’s account…unless they are all in the same household).  

Similarly, if a history teacher wants to use their Netflix account to view “13,” at home, even if it is to prepare for a lecture or a discussion of the film in class the next day, that strikes me as a “personal” use.  But if their institution asked them to do it, or they wanted to use their account to watch the movie in class, that would not be allowed.[7]

I wish I could give the member clever answer informed by Fair Use, or coming up with some special rule that applies to libraries.  But licensing is a creature of contract, and if you accept the terms, they will generally govern.

So, just like this member, read those licenses carefully!

 



[1] I know it sounds rather cold, but in liability-land, schools are “corporations.”

[2] You should see the analogies I left on the cutting-room floor!  My favorite involved a building permit and pirated architectural plans.

[3] I do not bow hunt, but if I hunted at all, that is how I’d do it.  I have a friend who bow hunts; she is like Wonder Woman, but with white hair a much more practical gear.

[4] As of December 18, 2019 (I took a screen shot).  We’ll see if it’s there in a year or so.  I’m such a media influencer, maybe once Swank hears about me calling them “coy,” they’ll switch it up!

[5] As discussed in other columns, Netflix does have an “educational use” license for some documentaries. Their instructions to see if a movie is available that way is here: https://help.netflix.com/en/node/57695

[6] ASCAP, BMI, RIAA, MPAA, and DirectTV were the pioneers of this tactic. 

[7] I would like to thank Jim Belair (who gave me permission to credit him here) at Monroe 2 Orleans BOCES for a great discussion on the implications of this issue for New York public schools.  Most institutions don’t invest in DVD players anymore, which means that streaming is the way the access content.  But if the streaming service isn’t in the name of school (just the teacher or the administrator) use by the school risks violating their license.

 

Tags: Copyright, Movies, Streaming, Swank Movie Licensing, Umbrella Licensing

Topic: Streaming, Rental and Umbrella Movie Licenses - 12/19/2019
What qualifies as a legally owned copy of a movie? I understand that the physical copy, when loane...
Posted: Thursday, December 19, 2019 Permalink

MEMBER QUESTION

What qualifies as a legally owned copy of a movie? I understand that the physical copy, when loaned is transferrable and can be covered with an Umbrella License from SWANK or other companies. I believe that streaming services do not qualify as an owned copy as they have licensing that does not work with the Umbrella License. What about movie rentals from iTunes? Does that licensing also exclude itself from the umbrella license? I guess my question is, does only a physical copy of the item work with the Umbrella License provided?

WNYLRC ATTORNEY'S RESPONSE

Schools, libraries, prisons, museums, student clubs, companies…from time to time, these places just want to hand out snacks, and let people watch a movie.

The problem is, the simple act of gathering people to watch a movie is governed by an intricate web of copyright law, and the legal filaments of that web change from place to place.

To help institutions navigate this variability, movie studios and agencies (including Swank, the agency mentioned in the question) offer suites of “licensing” options.  Swank’s website even features helpful[1] copyright guides to help customers assess their needs and obligations, so they can select the right license—including an array of broad permissions called an “umbrella license.”

Under an “umbrella license,” movies that the agency has the rights to may be shown by the licensee (under an array of qualifying circumstances).  And as the member writes, this can include showing movies from a borrowed physical copy (like a DVD), even if the copy isn’t supplied by the service.

How does that work?  Here’s an example:

Let’s say my daughter’s kindergarten teacher wants to show the class “My Neighbor Totoro.”[2]  The teacher stops at a local library to obtain a copy on DVD, which bears the warning “licensed for home viewing only.” 

Next, the teacher checks in with the school and confirms that the school is licensed to show “Totoro” under the school’s umbrella license.  My daughter’s class can now watch a masterpiece of Japanese animation, without fear of copyright infringement.

Now let’s switch the scenario up: the teacher wants to stream the movie from his iTunes.  The school still has that same umbrella license.  Can the teacher use his personal account to show the movie?

No.  Unless Apple has changed their “Terms of Use” (usually some version of “You agree that your use will be for personal, noncommercial purposes”[3]), the use would be in violation of the teacher’s license. 

That said, depending on how broad it is, the school could try and claim the “umbrella license” to get the school out from under a claim of direct infringement.[4]  But that could leave the teacher twisting in the wind!  - Not very good for union relations.

To switch the scenario one last time: let’s say the school has an “umbrella license” from an agency like Swank, and also subscribes to a streaming movie service (Amazon Prime).  Before a class views a movie via the Prime stream, the school would need to review both licenses to ensure the Prime license was consistent with, or trumped by, the “umbrella.”[5]

This issue here isn’t really about streaming v. hard copies.  It’s about licenses.  In our first scenario, the “generic” license on a hard copy is (potentially[6]) trumped by the “umbrella license” held by the school.  In the second scenario, the personal license held by the teacher could be violated when he uses his account for more than “personal” use—even though the school is licensed to show the movie.  And in the third scenario: well, it depends.

The key to this question is license alignment.  If an institution has a license to view a movie, and gets the copy it views from another source, there must be no contradictory provisions in the stack of licenses—or, the umbrella license must clearly trump the previous license.  This is true whether the institution is using a hard copy or a streaming copy, and regardless of who the physical copy belongs to. 

The member’s question alerts us to this complexity, and the member is right to approach this issue with caution. 

So.  What constitutes “a legally owned copy?”  I wish I had a simple and rock-solid answer, but these days, that can be a tough call.  Reading the fine print on licenses might not be fun,[7] but it is an essential part of answering this type of question, and it needs to be done on a case-by-case basis.  This is why careful planning during procurement, and attention to details when negotiating licenses and services, is critical.

Thanks for a question that pulls the focus to this issue.



[1] “Helpful” in the sense that they inform potential customers as to why they need Swank’s service!  But the “help” is based on reality.

[2] This is a fantasy example.  But they did show her “The Little Mermaid.”  Sigh.

[3] As seen on December 9, 2019 at https://www.apple.com/legal/internet-services/itunes/us/terms.html.  That said, each work can have its own terms, so always read carefully.

[4] But not, perhaps, “contributory infringement” (assisting in infringement by another).

[5] This answer is esoteric enough, so we won’t dive into the further implications of streaming movies under the TEACH Act…but commentary on that can be found in earlier answers.

[6] Always check you umbrella license!

[7] Okay, I’ll admit it: I find reading the fine print fun.

 

Tags: Copyright, Movies, Streaming, Swank Movie Licensing, Umbrella Licensing

Topic: Patron Streaming Content and Library as a Contributory Infringer - 9/3/2019
According to Motion Picture Licensing Corporation, "A library can even be held as a contribut...
Posted: Tuesday, September 3, 2019 Permalink

MEMBER QUESTION

According to Motion Picture Licensing Corporation, "A library can even be held as a contributory infringer simply for allowing patrons or guests to conduct unlicensed exhibitions on site. Innocuous activities, such as patrons streaming content from Netflix, Hulu, or Amazon Prime on library computers, require a public performance license."
 
There is a lot of variations in how a patron may access these sites - on a public computer; on a personal device; on library wi-fi; on their personal device using a personal data plan... Is this referring to public library computers ONLY, or any patron device that is accessing their private streaming accounts in the public library? We have a lot of people that come in and use our wi-fi, and download episodes to watch at home. We've always treated public computers as a private space.
 
Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?
 
Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?
 
Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
 
Any guidance would be appreciated.
 

WNYLRC ATTORNEY'S RESPONSE

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

  • Making multiple unauthorized copies of articles;
  • Screening movies to a group without a license;
  • 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

  • To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
  • That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
  • Liability for contributory infringement can be reduced by following the DMCA.
  • Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.



[1] Fair use, library-specific protections that apply to audio-visual news, charitable and educational exceptions.

[2] As of August 22, 2019!

[3] 17 U.S.C. § 512(c)(1).

[4] The process for designating an agent may be found at: https://www.copyright.gov/dmca-directory/

[5] A nice primer is also provided in this commentary by the Electronic Frontier Foundation.

[6] If your library is part of an accredited educational institution and the movie is being shown as part of a class, check out the exceptions under Section 110 of the Copyright Act!

[7] Library IT staff and leadership may, of course, consider blocking or granting lesser priority to certain types of online traffic (access to WorldCat v. access to Blizzard, for instance), simply for utility’s sake.  That is another topic beyond the scope of this response, but one I’d love to see a panel about.

[8] Higher education libraries, careful coordination with other operations may be needed on this, due to your institution’s obligations under 34 CFR 668.43, which does require certain warnings be given to students.

 

Tags: Copyright, Fair Use, Streaming, DMCA

Topic: Using Streaming Services (Hulu, Netflix) in the Classroom - 4/17/2019
In a public school...What are the possible legal consequences of showing Netflix or other digital ...
Posted: Wednesday, April 17, 2019 Permalink

MEMBER QUESTION

In a public school...What are the possible legal consequences of showing Netflix or other digital streaming services like HULU from a personal account in a classroom setting.

Can teachers legally stream Netflix services from their personal account in the classroom?

The "Educational Screenings of Documentaries" section of Netflix indicates to me that those documentaries listed are the only titles that would be allowed to be shown through a personal account and that all others are for personal use only, meaning that Fair Use would not apply.

I found a Lib Guide from the James E Tobin Library:( https://molloy.libguides.com/streaming/netflix ) that explains how the personal license overrules copy right exemption. I understand what the page is saying in its entirety and like their explanation, but would appreciate having a legal perspective on this issue.

Thank you for any help you can provide!

WNYLRC ATTORNEY'S RESPONSE

The relationship between a person and their streaming content service is almost always[1] governed by a type of contract called a “license.”

As the members states, such a license (often accepted by clicking to accept terms left unread) can over-ride the infringement exceptions like those found in 17 U.S.C. §§107, 108, and 110.[2]

In other words, once a user voluntarily agrees to a contract restricting use of content, rights they may have once by law may become inaccessible.

Use of streaming content in the educational setting is a good example of this.  While Section 110 of the Copyright Act may allow a teacher to show a movie in class (if the movie is shown in the physical classroom and if the content is part of the curriculum), that same movie might not be accessible under the teacher’s Netflix license.

Why? Content providers change the terms of licenses all the time, but one thing is pretty constant: restricting subscription access to personal use.

Here is how Hulu puts it:

3.2 Your License. Hulu is pleased to grant you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes as set forth in these Terms.

Netflix has a similar-sounding restriction.  Even the “Educational Screenings of Documentaries” the member references (found at https://help.netflix.com/en/node/57695) license is pretty narrow (and actually a shrewd PR move for a commercial service):

Educational screenings are permitted for any of the documentaries noted with this information, on the following terms:

The documentary may only be accessed via the Netflix service, by a Netflix account holder. We don’t sell DVDs, nor can we provide other ways for you to exhibit the film.

The screening must be non-profit and non-commercial. That means you can’t charge admission, or solicit donations, or accept advertising or commercial sponsorships in connection with the screening.

Please don’t use Netflix’s logos in any promotion for the screening, or do anything else that indicates that the screening is “official” or endorsed by Netflix.

We trust our users to respect these guidelines, which are intended to help you share and discuss our documentary content in your community.

To the extent your institution requires you to demonstrate that you have a license for your screening, please show them this page.

 

So there you have it: the only Netflix content that may be shown for classroom use is, as the member states, per this permission.

But (to address the other part of the member’s question) what are the consequences for not abiding by the license?  Is there a growing body of case law to show the fines, terminated accounts, and jail time[3] people are doing when they violate the terms of their streaming service license?

There is not. 

Why?  Most of these license agreements have arbitration clauses, meaning that disputes are settled without the publicly accessible process found in a court of law. 

Here is part of the arbitration clause from Netflix:

7.1. If you are a Netflix member in the United States (including its possessions and territories), you and Netflix agree that any dispute, claim or controversy arising out of or relating in any way to the Netflix service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. … Arbitrators can award the same damages and relief that a court can award…. [4]

So there may be a number of instances where a license has been violated, and Netflix has sought “…the same damages and relief that a court can award” via arbitration.  But I don’t have access to that information.  Most of us just don’t know.[5]

I do know, however, that violating a license is wrong, and can have consequences. [6]  Further, I would hope that in the educational setting, modeling casual disregard for personal contractual obligations is not encouraged.

Teachers are usually barred by the contract from streaming Netflix services from their personal account in the classroom.  Unless there is an express license to the school from a streaming service, or for a particular film, I encourage teachers to obtain physical copies of films/DVD’s from the library, and play them in class on a good old-fashioned TV and DVD player, as Section 110 of the Copyright Act allows them to do. 

Thanks for this perceptive question.

 


[1] I would say “always,” but there has to be some streaming service out there with no “terms of use,” or other contractual permissions.  They might not have any desirable content, but there must be at least one.

[2] Fair use, library exemptions, and certain educational/charitable exemptions, respectively.

[3] I am mostly kidding about this last one. 

[4] Interestingly, as of this writing, Netflix is hosting “The Arbitration,” a 2016 film where: “An arbitration panel is formed after a company CEO in Nigeria is sued for wrongful dismissal and rape by an employee with whom he had an affair.”  An arbitration over unauthorized commercial use of a streaming service would likely be a tad less dramatic.

[5] And the people who probably do know are locked into confidentiality.

[6] Is a mandatory arbitration clause like this fair?  Are highly-leverage content restrictions healthy for our society?  Many would say “no” to both.  But the member’s question was not about mandatory arbitration clauses and heavy-handed content contracts.  Just wait until we get that question!

 

Tags: Streaming, Fair Use

Topic: Streaming movies in school and the TEACH Act - 4/1/2019
Does the TEACH Act allow a school to stream entire movies, if the movies could otherwise be shown ...
Posted: Monday, April 1, 2019 Permalink

MEMBER QUESTION

Does the TEACH Act allow a school to stream entire movies, if the movies could otherwise be shown in their entirety in class?

WNYLRC ATTORNEY'S RESPONSE

The TEACH Act was adopted in 2002 to enable the “digital transmission” of otherwise copyright-protected content for educational purposes. 

Schools meeting the Act’s requirements[1] can stream readings of poetry, images of paintings, and lines of computer coding, without fear of infringement claims.  This allows regular teaching activities—like analyzing a poem, assessing a painting, or teaching HTML--to happen online, without fear that the duplication or transmission of the copyright-protected content will bring a lawsuit. 

The TEACH Act positions online learning to use content as it would be used in a traditional classroom—as well as to novel and innovative things via distance learning technology.

But there are a few aspects of the “traditional classroom” the TEACH Act cannot replicate, and a critical one is: watching entire movies.

Per Section 110(1) of the Copyright Act, entire movies can be shown during an in-person class (if they are part of the curriculum…the law doesn’t allow a trigonometry class to kick back with “Wonder Woman” after finals are shown, unless they are calculating the angles of the bullets bouncing off her bracers). 

But there is no equivalent exception in the TEACH Act for streaming an entire video as part of an online course. 

In fact, in very plain language, the Section 110(2) of the Copyright Act states that only a “portion” of a film can be shown.  As stated right here:

…the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission…. [emphasis added].

Okay, I admit it: it’s possible the “very plain language” is only plain to lawyers (and copyright scholars—many of whom are librarians--who leave some lawyers in the dust on these issues). 

The “House Report” [2] below, explains how this language means performance of an entire movie is not allowed:

The exemption for instructional broadcasting provided by section 110(2) would apply only to “performance of a nondramatic literary or musical work or display of a work.” Thus, the copyright owner’s permission would be required for the performance on educational television or radio of a dramatic work, of a dramatico-musical work such as an opera or musical comedy, or of a motion picture.   [emphasis added]

So what does this mean?  Schools that want to stream entire movies as part of an online course—even if those movies could be shown during an in-person class--should not rely on the TEACH Act as their protection from infringement.[3]

What are the other solutions?

  • The institution can obtain a license to stream the movie(s);
  • The institution can create a “hybrid” course (part online, part in-person) that shows the movies in a physical class, as authorized by 110(1);
  • Students can be required to subscribe to a streaming service or other licensed source of the movies, just like they rent or buy textbooks;
  • In some instances, fair use might apply, BUT that should be determined on a movie-by-movie basis and documented very carefully, since simple academic need is generally not a defense to infringement.

Thank you for this question!



[1] There are a lot of them, including the requirement that the material used is presented “…as an integral part of a class session offered as a regular part of the systematic mediated instructional activities….” 

[2] This language can be found at https://www.law.cornell.edu/uscode/text/17/110.

[3] The TEACH Act is also comprised of Copyright Act §112, but as the “House Report” for that section says “[Since the] performance exemption provided by section 110(2) applies only to nondramatic literary and musical works, there was no need to exclude motion pictures and other audiovisual works explicitly….” [emphasis added].

 

 

Tags: Copyright, Streaming

Topic: Online Story Time and Copyright - 3/11/2019
[The member provided a link to a story about an elementary school principal putting on her pajamas...
Posted: Monday, March 11, 2019 Permalink

MEMBER QUESTION

[The member provided a link to a story about an elementary school principal putting on her pajamas and using “Facebook Live” to read her scholars a weekly bedtime story.]

I always love ideas like this but am afraid to promote them because I have heard that this is a copyright violation. Is it? If it is, what are our options to do something like it in a legal and ethical way? Thank you!

WNYLRC ATTORNEY'S RESPONSE

Reading to kids is one of the best thing we can do for them.  If the law gets in the way of that, there is something wrong with the law!

That said, honoring the rights of authors and illustrators who create stories to charm and educate is one of the best ways we can make sure there is always something new to read. 

And it’s the law.  

The member’s concern is justified; copyright law rewards creativity by empowering rights holders to control how and when their work is duplicated--in this case, “performed”[1].  A reading on “Facebook Live”—no matter how many cute, be-jammied scholars it enriches—could infringe those rights[2]

But as the member also suggests, respecting copyright does not need to be the end of the line; there are many ways this type of real-time, remote reading can take place.

Below, please find my “Top 5 Ways for a Teacher to Remotely Read a Bedtime Story to Lots of Kids in Different Places Without Fear of Committing Copyright Infringement.”

1.  When choosing a book to read, select a work in the “public domain”…meaning, the book is no longer protected by copyright.  As of 2019, this means works published before 1924 (in the U.S.) and other select situations.[3]

For example, the “Brothers Grimm” who were writing in the 1800’s, are not suing anymore (nor are their heirs).  Just make sure the publisher hasn’t found a new way to assert the copyright of the copy you read from (a new version, new illustrations and layout, a slightly less sadistic version of the original, etc).

2.  Write your own story.

This one is my favorite.  Who knows?  You might discover you’re the next Eric Carle!

3.  Hold a writing contest amongst the students that includes parental permission to read the entries/winners online. 

This could also bolster interest in the event, since kids could hear their own work read, and see their own pictures online.

4.  Explore making the reading exempt under the TEACH Act (section 110 (2) of the Copyright Act).

The TEACH Act exempts certain digital transmissions of work from the classroom environment.  It has several highly specific requirements, so educators should connect with their institution’s attorney and IT department to see if this option can work for them.  While not the solution for every “good night” reading, with some planning, it could be a way to make online reading sessions a part of a routine curriculum.

And finally…

5.  Explore getting permission from the rights holder!  While not all authors will be in a position to agree, many will say “Yes, of course!” when asked if a teacher can livestream a reading of their book (of course, if you also want to show their book as well as read it, you will need permission from the illustrator, too). 

Reaching out to an author or publisher takes time, but many children’s authors are very accessible.  My high school friend, Grace Lin, is a well-known children’s book author (and recent winner of a Caldecott Honor for “A Big Mooncake for Little Star”).  I reached out to Grace on Facebook to get her take on this issue (and got her permission to share her thoughts). 

For Grace, whose work contains lovely and carefully rendered illustrations, such a request would be about intent and quality.  She said if the reading was more about the not-for-profit reader and audience connecting over her story, and not the video dwelling on the pages (effectively copying them), she would consider giving permission.  On the flip side, Grace felt that serious duplication (with the video dwelling on the pages) could be an unwelcome duplication. 

Like many children’s book authors, Grace is accessible via her website, www.gracelin.com, and I encourage would be night-time-story-readers to reach out to her!

Thank you for this great question.  Copyright is an important law to honor in the educational environment.  But finding ways—lots of ways—to give children an early and deep love of books is an even greater service to the world.  It’s one of the reasons librarians are so important.

 


[1] There are six distinct rights given by a copyright: reproduction, , derivative works, distribution, performance, display, and (for sound recordings) digital transmission.  You can see the full list here:  https://codes.findlaw.com/us/title-17-copyrights/17-usc-sect-106.html

[2] Small note: the reason books can be read aloud in class (from k—grad school) without fear of infringement is because of an exception in Section 110 (1) of the Copyright Act.  My solution in number “5,” above, is based on this exception.

[3] How can you tell if a work is in the public domain?  One of the great treasures of the universe, a chart for determining public domain availability, is maintained by Cornell University at:  https://copyright.cornell.edu/publicdomain.

Tags: Copyright, Social Media, Streaming, Story time, Online Programming

Topic: Using books on social media - 9/19/2017
Can we film a story time done at the library using copyrighted books, and then either stream the e...
Posted: Tuesday, September 19, 2017 Permalink

MEMBER QUESTION

Can we film a story time done at the library using copyrighted books, and then either stream the event live over Facebook for a one-time showing, or film and upload the story time to our library's YouTube channel? The purpose would be so that patrons who cannot come to the library will still be able to participate in story time and gain early literacy benefits.

WNYLRC ATTORNEY'S RESPONSE

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

  • “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
  • If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
  • The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.

 


[1] No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.

[2] Because it technically “makes a copy” as it goes, streaming is often considered duplication.  If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.

[3] Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]

[4] Per Section 110 (8) of the Copyright Act.

[5]Those circumstances are listed in the ALA’s TEACH Act FAQ.

[6] Law linked here.

Tags: Copyright, Public Domain, Streaming, Derivative Works, Social Media, Story time, Online Programming

Topic: Showing Performance Video to a Sanctioned College Club - 11/8/2016
The question relates to showing a performance video to a sanctioned college club. I understand tha...
Posted: Tuesday, November 8, 2016 Permalink

MEMBER QUESTION

The question relates to showing a performance video to a sanctioned college club. I understand that as long as the college's library owns the DVD or streaming rights, the movie can be shown in its entirety for educational purposes in a classroom to registered members of the institution. Does the same hold true for showing the same movie to clubs on campus as long as the event is restricted to college members? This second question is related to the movie presentation but is concerned with publicity. Can the cover image be copied and inserted into the event posters and on the college's website? The web announcement would be removed immediately after the event.

WNYLRC ATTORNEY'S RESPONSE

First question
As you say, a college can show a movie they own, without further licensing, so long as: 

  • The institution is a not-for-profit
  • The performance of the film is in connection with face-to-face teaching activities, in a classroom or similar place of instruction.
  • The copy was legitimately acquired

This is a broad exemption, but it absolutely does not apply to non-instructional, non-classroom showing of movies by student clubs.  Such a showing would require express permission via license.

Of course, if a student club has an academic focus (for instance, Spanish Club) and the film is to be part of an academic experience (for instance, watching the movie in Spanish, to enhance learning), in an academic setting (class room, with a qualified academic instructor) one could argue that the required elements are still met. But the educational purpose must be bona fide…no watching “Deadpool” for entertainment and then having a half-hearted, academically disconnected discussion on modern comic book tropes.  And of course under no circumstances should money be charged.

Second question
The second question is very simple: the cover images of most commercial films are subject to copyright.  Because of that, and because there is no exemption allowing them to be duplicated, unless permission is obtained, the college is well-advised not to allow copies to be displayed to promote the event, and especially should not allow that image to be published on the college website. 

Keeping it off the website is critical.  Even smaller rights holders police the internet for images they own, and insurance companies, facing mandatory statutory damages and attorneys’ fees, will quickly settle claims…something that will eventually lead to higher insurance premiums for your institution.

The best way to promote the licensed showing is to either use the approved promotional material that comes with the license, or generate a version that does not infringe on the content of the original (or the film).

Tags: Copyright, Streaming

Year

0

2016 4

2017 24

2018 29

2019 42

2020 68

Topics

501c3 2

Academic Libraries 2

Accessibility 4

ADA 8

Archives 1

Association Libraries 2

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Branding and Trademarks 1

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Cease and desist 1

Children in the Library 1

Circular 21 1

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CONTU 2

copyleft 1

Copyright 72

COVID-19 51

CPLR 4509 3

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 9

Digital Exhibits 1

Digitization and Copyright 11

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 42

Employee Rights 8

Ethics 4

Executive Order 3

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 5

First Amendment 1

First Sale Doctrine 3

Forgery and Fraud 1

Friends of the Library 2

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HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 20

Liability 1

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Library Buildings 1

Library Card Policy 1

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Library Programming and Events 9

Licensing 3

LLCs 1

Loaning programs 1

Local Organizations 1

Management 16

Meeting Room Policy 6

Memorandum of Understanding 1

Microfilm 1

Movies 5

Municipal Libraries 5

Music 12

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 1

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Overdrive 1

Ownership 1

Parodies 1

Personnel Records 1

Photocopies 15

Photographs 1

Policy 35

Preservation 2

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Property 3

PTO, Vacation, and Leave 1

Public Access 1

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Section 108 2

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Section 1201 1

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Smoking or Vaping 2

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SORA 1

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Streaming 13

SUNY 1

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Teachers Pay Teachers 1

Telehealth 1

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Textbooks 3

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VHS 4

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WAI 1

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Zoom 2

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.