RAQs: Recently Asked Questions

Topic: Phone recordings of stories and copyright - 5/12/2020
If staff record themselves through our phone system reading published short stories and poems that...
Posted: Tuesday, May 12, 2020 Permalink

MEMBER QUESTION

If staff record themselves through our phone system reading published short stories and poems that are then made accessible to the public through the same phone system, are there issues with copyright? Various public libraries nationwide offer dial a story services, and my school district public library is looking to offer this too. Some of our patrons do not have access to technology and internet, so we want to offer this no frills service during our COVID-19 closure, and beyond. The recordings would likely be 3 to 7 minutes in length and offered a couple of times a week.

WNYLRC ATTORNEY'S RESPONSE

For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.

As we noted in our March 24 Ask The Lawyer answer (https://www.wnylrc.org/ask-the-lawyer/raqs/123), copyright law does still apply despite the pandemic and the many needs it has created for alternative outlets, resources and programming.

For a public library, unless the service is an adaptation under the Americans with Disabilities Act, any recording of a copyrighted work needs to be made with the permission of the rights holder. Under fair use doctrine, limited excerpts can be read, interspersed with commentary. But a full work presented alone in its entirety or in substantial excerpts, without the permission of the rights holder, may not be. This doctrine remains in effect.

One solution to consider is reading either works that are in the public domain, and/or works whose rights holders have given permission for this type of use during the pandemic or otherwise. Readers may have heard about LeVar Burton Reads, a pandemic podcast from the iconic Reading Rainbow host, in which Burton encountered this exact struggle and was given permission by noted authors including Neil Gaiman and Jason Reynolds. While most local libraries will not have Burton’s star-studded cast of Twitter followers from which to draw partnerships, they may find folks in their own communities who are happy to freely share their own works.

A list of ideas for children’s books in the public domain is here: https://concretecomputing.com/thoughts/list-of-public-domain-free-books-for-kids-by-grade-level/

Project Gutenberg is also often recommended for searching for works in the public domain: http://www.gutenberg.org/

Tags: Copyright, COVID-19, Emergency Response, Story time

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

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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.