RAQs: Recently Asked Questions

Topic: Next-door Neighbor/Real Estate Disputes - 12/28/2018
What laws impact a library’s next-door-neighbor relationships?  Are there best practice...
Posted: Friday, December 28, 2018 Permalink

MEMBER QUESTION

What laws impact a library’s next-door-neighbor relationships?  Are there best practices for neighbor disputes? 

WNYLRC ATTORNEY'S RESPONSE

There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors.  I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery.  A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.

What laws impact a library’s relationship with its neighbors?  Most libraries exist on land[1], or within a building, so the controlling law is called “real property” law.  “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo).  Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”

Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law.  And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too. 

And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.

Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor.  But are there any general “best practices” to abide by?  Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.

Practice #1: Know where you stand

Every library should know precisely what property they occupy, and how they occupy it.  To do this, I recommend what I call a “binder solution.” 

For libraries that own their own property, the binder contains:

  • Deed
  • Survey
  • Assessment information (even if the building is off the tax rolls)
  • Mortgage (if you have one)
  • Any recorded easements or rights-of-way
  • Current and past insurance summaries and policies
  • Permits (if any)
  • All contracts and documents related to maintenance
  • Fixture and structure warrantees (driveway warranty, roof warranty, etc.)
  • Deferred maintenance plan

Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world. 

For libraries that do not own their premises, the binder contains:

  • Lease
  • Survey or floorplan of library’s portion of building
  • Current insurance summary or policy
  • Permits (if any)
  • Warrantees for on-site physical assets your library paid for/owns (copier warranty computer system warranty, etc.)
  • All occupancy-related correspondence with landlord, including notice of defects or safety hazards

Why does all this matter?  Many real property battles are lost when owners over-state or mis-portray their rights.  Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).

Practice #2: Know your neighbor

This advice works on two levels.

The first level is obvious: know your neighbors.  Invite them over.  Know the names of their kids and what sports team they root for.  That type of outreach is insurance against any number of serious disputes.

The second level is a bit more covert: what’s in their “binder”?  Are they the owner?   Are they renting?  Might they be a squatter?  Basically, to the extent possible, develop a “binder solution” for them, too.  In getting to know them a bit better, you might develop some insights on the roots of your dispute.

Practice #3: Isolate this issue

In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break.  You are alongside and--in some places practically on top of—each other, 24/7.    And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.

That said, if you have a potential neighbor dispute, isolate what you think the true cause might be.  Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989?  Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?

The point of this is: make sure you really know what’s up.  That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.

Which brings us to…

Practice #4: Use a professional!

Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations.  They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.

If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor.  Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.

Practice #5: Pick your battles!

Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission.  For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.

It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:

Your Library

Your Neighbor

The Dispute

The Law

Fight the Battle?

Owns its property, and just put a new skylight in.

 

Is a long-term renter. 

With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.

Could be in violation of a noise ordinance.

Could be a violation of their lease. 

Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players.  This could be a diplomatic (and loud) nightmare.

 

 

Rents its property, and has had the same lease since 1996.

 

Owns their property across the street.

 

 

After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.

 

So much!  This would call for an immediate and very well-organized response.  But even before you call your lawyer, call your landlord and your insurance carrier.

 

You’d have to pick which battle.  Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.

 

Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.

 

Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.

 

The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.

 

 

The only entity with clear rights here might be

the donor!

 

Ugh.  This is the type of battle that can get ugly, quickly.  Hopefully after you assess your position with a professinoal, some diplomacy and living up to any contractual obligations can save the day.

 

Is buying a historic property[2] to rehab and move into.

 

 

Owns the house next door.

 

In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.

 

This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.

 

You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s!  But be strategic and consult an attorney before you raise it externally (including with the neighbor).

My overall guidance?  Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families.  It’s amazing how much ill will can dissolve over apples and pears.

Good luck out there!

 


[1] Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.

[2] I love historic properties and historic preservation.  That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before.  Those buildings are full of expensive surprises.

Tags: Laws, Management, Property

Topic: Library Lockdowns - 12/28/2018
Should an event occur, is it legal in NYS to institute a lockdown in a public library? ...
Posted: Friday, December 28, 2018 Permalink

MEMBER QUESTION

Should an event occur, is it legal in NYS to institute a lockdown in a public library?

WNYLRC ATTORNEY'S RESPONSE

This question brought back a lot of memories for your “Ask the Lawyer” attorney.  

Between 2006 and 2017, I was a full-time in-house attorney on a college campus.  On April 16th, 2007, my time in higher ed was forever changed, when the entire campus froze to watch the reporting from Virginia Tech.  32 people dead.  17 wounded.

Over the years, as incident after incident occurred on schools and college campuses, my colleagues in higher education would wonder “Are we next?”[1]

I was lucky; my campus had no such incident during my time there (or since).  But I was there for the development of our active shooter response protocol, there for our on-campus trainings, and there, as an administrator, for our “incident response” trainings with local, state and federal law enforcement…getting ready for a day when we might not be lucky.

Large (and small) public institutions and facilities like schools, museums, malls, and of course libraries have been struggling with how to prepare for the day someone brings a gun and threatens or perpetrates violence on their property.  It is a horrific thing to contemplate, and a scary prospect to plan for…especially because there is a diversity of opinion as to what the best prevention and training techniques really are.

Some institutions have the benefit of mandates.  In New York, all schools must practice active shooter response, and there are laws, regulations and experts in place to guide those mandated drills.  And college campuses are mandated to prepare for emergency response.

Public libraries, on the other hand, do not have such a state-wide mandate.  Although chartered and operated in connection with a municipality, they are independent operators.  This means that though they may choose to follow whatever policy or procedure their municipality has developed for emergency response, or to adopt their own, that choice requires board approval.[2]

But the member’s precise question is: is it legal in NYS to institute a lockdown in a public library?

First, let’s clarify what is meant by “lockdown.”

Per §155.17 of Chapter 8 of New York’s Rules & Regulations: 

Lock-down means to immediately clear the hallways, lock and/or barricade doors, hide from view, and remain silent while readying a plan of evacuation as a last resort. Lock-down will only end upon physical release from the room or secured area by law enforcement.

To some people, “lockdown” (hiding, barricading) in the face of an active shooter sounds like a really good idea.  Others might prefer to run.  And still others think the best option would be to fight.

According to the New York State Division of Homeland Security and Emergency Services, depending on the situation, any of these could be the right choice.  Watch the video, “480 Seconds” at this link[3]. It depicts, in stark and practical terms, the different “best” responses, depending on an active shooter situation.  http://www.dhses.ny.gov/aware-prepare/step3.cfm

“Lockdown,” as defined in the NYS Education Law, was determined to be the best option for schools because they house a large, vulnerable population of minors.  While many of us only hear about this procedure through our kids (as we try to conceal our terror), school librarians know first-hand that the drills our kids do are only a small part of a system that requires:

  • extensive site analysis;
  • the creation building safety teams;
  • designation of emergency gathering spaces;
  • communications plans; and
  • extensive training of staff. [4]

Any lockdown plan should be this well-developed, because as “480 Seconds” shows, sheltering in a secure place is not the only response to an active shooter situation.  Further, even in a place with a lockdown plan, responses will vary by building type, function, and population served (consideration of people with different disabilities, for instance, requires continually renewed attention).  Given certain variables, a lockdown procedure might be the best option, but even once that has been determined, ensuring doors can be secured, signage is properly posted, and staff are trained, are all critical elements of the plan.

So, is it legal to institute a lockdown procedure in a public library?  Yes. Library boards can (and should[5]) pass emergency response policies, include active shooter policies, and a lockdown plan might be determined to be the best response.  That said, unlike schools entrusted with minors, libraries serve a large population of independent, autonomous adults.  Unlike law enforcement responding at the scene, a staff directive to stay in place will only have the force of library policy…which is different from an order by law enforcement[6].  A person who wants to leave (and whose biology is telling them they MUST leave) might do so.

For me, the most important aspect of this question is not if a lockdown policy at a public library is “legal,” but how a public library develops its active shooter response plan and trains its staff.  This can be no cut-and-paste job; it is a work for a credentialed and experienced expert.  There is grant money and aid out there for not-for-profit libraries to seek this critical input.  And in many places, simply reaching out to local government can put you in touch with all the resources you need. 

Just like “480 Seconds,” the services of an expert[7] will help your library apply the collective wisdom about active shooter situations to the somber but vital act of planning for an actual situation. 

We can never be truly ready for an active shooter incident, but we can be prepared.  Lockdown might be part of that preparation.  Thank you for this important question.



[1] It was probably a false sense of security, but these were the times when I was glad to have ROTC on campus.

[2] There is one exception to this: a public library that rents its property may be required, in its lease, to follow the rules of its Landlord. But that would still mean the board had approved the terms of the lease.

[3] This video is not graphic, but it is very serious.  I suggest you not watch it at your library unless it is part of an in-depth and well-considered training on active shooter response, led by a credentialed and experienced expert (local law enforcement should be able to assist in finding that person).

[4] See NYS Education Law §2801-a.

[5] An emergency response plan, along with plans for an active shooter, is listed as a recommended policy in the NY Library Trustees’ Association’s 2018 Trustee Handbook, page 115.

[6] Of course, some libraries have private security, or coordinate with law enforcement.  If that is the case for your library, their training and level authority must be incorporated into your plan, and that may change the dynamic.

[7] This is very serious: your plan and training should be put in place using a contracted, person with established credentials and experience writing and training on emergency preparedness and active shooter response.  There are many accredited and recommended programs for this.  For a public library, this would be through the usual procurement process.

 

Tags: Policy, Management, Safety

Topic: Retirement Benefits for Employees - 11/28/2018
Are municipal public libraries obligated to provide retirement benefits for all employees? Does th...
Posted: Wednesday, November 28, 2018 Permalink

MEMBER QUESTION

Are municipal public libraries obligated to provide retirement benefits for all employees? Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees? Does the number of hours pertain? Or does the employee qualify for state retirement system benefits through the municipality? Again - is it based upon hours worked?

WNYLRC ATTORNEY'S RESPONSE

Retirement benefits play a critical part in employee recruitment and retention.  Library leadership should carefully consider—and routinely re-evaluate—the role of retirement in the suite of benefits they use to attract and nurture personnel.

To craft the right retirement approach, leaders must consider not only the legal landscape of their  library, but the local job market, their recruitment objectives, and their retention goals.  The final approach should not only support the library’s plan of service and vision for its mission, but comply with all relevant law.  To ensure this, the plan and final documents should be evaluated by both leadership, as well as an HR professional and attorney.

Municipal public libraries crafting a retirement plan must work with local government;  this is because the retirement benefits they can offer flow from the municipality they are attached to[1].  For that reason, any municipal public library addressing retirement benefit issues should reach out to their municipality’s HR department and/or attorney. 

The member’s questions are a good jumping-off point for some general guidelines to this process.  To take them in order:

Are municipal public libraries obligated to provide retirement benefits for all employees?

No.  Per New York Retirement and Social Security System Law Title 2, Article 2, municipalities may resolve to participate and enroll their employees in the New York State & Local Retirement System (“NYSLRS”), but such resolution and enrollment is not compulsory. 

Once a municipality decides to enroll, the NY Comptroller’s Office helps with the initial assessment of costs[2].  After enrollment by the employer, precise rules govern which employees are eligible for what level of plan; a great summary of who qualifies, and how, is here: https://osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-5.pdf.

Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees?

Yes and no.  A municipal public library’s enrollment in the NYSLRS flows through the enrolled municipality; [3] if the municipality is enrolled in the system, the (municipal public) library can participate.  That said, to emphasize employer autonomy, promote awareness, and ensure harmony of the retirement plan and benefits with other library operations, the board should be apprised of and vote on the retirement benefit, as well as its description within the employee manual and relevant policy.

NOTE: This “employer autonomy” aspect cannot be emphasized enough.  While great care should be taken by library leadership to coordinate certain employment-related matters with the municipality, a municipal public library SHOULD NEVER SURRENDER OR IGNORE THEIR AUTONOMY AS THE EMPLOYER.  There are a great many opinions[4] of the NY Comptroller (the go-to for municipal governance and budget issues) that emphasize the importance of this notion; it is a critical consideration and one deserving of a great deal of board attention and foresight (and professional input).

Does the number of [employee]hours pertain?

There are very precise formulas and enrolling, qualifying, reporting, and claiming NYSLRS retirement benefits[5], and employee hours are most definitely a part of those formulas. 

Hours are only a small piece of the puzzle, though.  The bigger parts are the details leadership will explore as they identify, and develop, a retirement benefit that supports the strategic direction and mission of their library.  That is a project that will take many hours of thoughtful work and exploration…but if undertaken with the right players, will bring great benefits.[6]



[1] Interestingly and somewhat famously (among the 14,000 or so library law aficionados in New York), this does not mean the municipality is the employer.  However, it does mean that many of the employee retirement benefits must (to a certain extent) be coordinated with the procedures and reporting of the local government.  NOTE: I invented the possible number of “library law aficionados,” but since I find this stuff fascinating, maybe 13,999 other people do, too.

[2] Information on kicking off the process of enrollment is here: https://www.osc.state.ny.us/retire/employers/employer_partnership/an_employers_role/becoming_a_participant.php

[3] As reflected in the excellent comparative chart on the New York State Education Department’s Division of Library Development Page: http://www.nysl.nysed.gov/libdev/libs/pltypes.htm.

[4] For instance, Op. State Comptroller 93-15, from 1993.

[5] A helpful guide on reporting hours to the NYERS is here: https://www.osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-6.pdf#search=%20libraries.

[6] Pun intended.

 

Tags: Management, Municipal Libraries, Retirement, Salary

Topic: Public Records in Archives and FOIL Requests - 11/15/2018
We attended the excellent FOIL workshop just offered by WNYLRC and hope you repeat it. Our institu...
Posted: Thursday, November 15, 2018 Permalink

MEMBER QUESTION

We attended the excellent FOIL workshop just offered by WNYLRC and hope you repeat it. Our institution has any number of manuscripts and papers that could be considered Fugitive Records: archival material from government offices, most of which was donated decades before the advent of the NY State Archives and modern public record regulations. Multiple area institutions are probably in the same situation.

We have physical custody (long story) of the papers of a retired congressmember from the area, but we deliberately did not send a Deed of Gift, because we did not want legal responsibility and ownership. We would prefer to return the papers to the congessmember because the collection is just too large for us to responsibly house or process. Negotiations along these lines have not been successful and we have not found another taker for them.

My questions are:

1. Are a congressmember's papers considered public records and subject to FOIL requests? 

2. If we do have the congressmember sign a deed of gift, so that we can weed, discard, and transfer as we see fit, are we liable if someone submits a FOIL request for records that we disposed of?

3. For archival records given to us from government offices almost a hundred years ago, are we obligated to repatriate them?

4. Also, are these archival records donated decades ago subject to FOIL requests?

WNYLRC ATTORNEY'S RESPONSE

It was an excellent workshop.[1] Nice work, WNYLRC.

As reviewed at the 10/24/18 session, FOIL[2], and its federal cousin, FOIA[3], govern the accessibility of public records.  When these laws are paired, they create a giant net, facilitating compelled disclosure of documents generated by local, state, and federal governments.

But not all government documentation is accessible through FOIA or FOIL.  Some types of records are omitted by specific exemption; others were never intended to fall under the compelled disclosure laws in the first place.

Congressional records are of the latter type; FOIA was never intended to mandate disclosure of records created by the U.S. Congress.  So in the member’s scenario, although there could be an array of other laws restricting the content from donation, duplication, and/or display—and some laws compelling disclosure—FOIA/FOIL does not apply. 

Moving to the next part of the member’s question: What if your institution was given records from an entity subject to FOIA or FOIL?  Can your institution be compelled to disclose them?  Depending on the nature of your institution, maybe.  But remember—FOIL applies only to government entities.  So, no matter what type of archives it hosts,[4] if your library or museum is private, your institution is not subject to FOIL.[5]

And now for the final parts of the member’s submission:  Can FOIL and FOIA considerations impact acceptance of donations? And if your private institution has, in all innocence, stewarded government-generated records for fifty or one hundred years, will it be forced to turn them over?

I will answer these questions using a short (very short) story. 

One day, as you staff the New York Museum of Asphalt[6], a town supervisor arrives at your door, breathless with excitement.  In his hands, he holds the complete file of the first smooth-paved road in his town!  Buried amidst the crumbling original material, you see a hand-written petition by a local cycling club, asking the town to smooth over its bone-jarring cobblestones.   

The supervisor is happy and proud; he rescued the records from a dumpster at the Town Hall while renovations were being done to the moldy basement.[7] You are excited and gratified; this would be the perfect complement to the Museum of Asphalt’s government procurement records dating from around 1900.  

But then you see that all the supervisor’s records are from before 1910. 

Uh-oh.

Because the records pre-date 1910, the town supervisor needs to contact the New York State Archives. 

Why? In New York, local governments cannot dispose of any records created before 1910 without written approval from the State Archives.  This rule applies regardless of the retention period otherwise set by law and regulation.

This “1910 requirement” has its roots in §57 of the Arts and Cultural Affairs Law, which states: “No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education.”  

So to bring this back to FOIL… not only must New York’s governments disclose certain records, they must also ensure those records are properly retained.  Advisory opinions about the intersection of these two obligations can be found on the New York Committee on Open Government’s page at https://www.dos.ny.gov/coog/foil_listing/findex.html. [8]

So does this mean that when the supervisor contacts the State Archives, he has to report the Museum of Asphalt’s old government records, too? 

No.

While these laws are important tools for protecting New York’s heritage, they do not in and of themselves compel return of government records held by a private entity. I found no case law or advisory opinions recommending such a course of action.  And (both for the fun of it, and to leave no stone unturned), I called Sarah Durling, my region’s rep at the NY Archives.  We discussed that while the preservation obligations of government officials are very clear, there is no “enforcement wing,” of the Archives directing return of government records once they have been accessioned and stewarded by private hands.

Of course, if the records were stolen, obtained via fraud, or conditionally granted by a donor, it is possible they could be removed from a private collection.  But there is no risk that after simple notification, an agent from the NY Archives will arrive at your institution, adjust their fedora, and snatch the documents from your temperature-controlled storage unit while saying “This belongs in another museum.”[9]

So to re-cap: not all government records are subject to FOIA or FOIL.  An entity not subject to FOIL cannot be compelled to grant access to documents simply because they originated with a FOIL-able entity[10].  And when it comes to accepting donations of government documents, the constraints of the NY Arts 7 Cultural Affairs law, not FOIL, apply.

And pro tip: reading the FOIL “Advisory Opinions” on the NY Committee on Open Government’s page is a blast.

Thank you!



[1] I did not put the workshop on, so this is not puffery.  But I was there, and the two presenters, attorney Mike Kuzma and bookstore owner/activist Leslie Pickering—who not only know FOIL/FOIA, but live FOIL/FOIA—were both educational and inspiring.

[2] New York’s “Freedom of Information Law”

[3] U.S.A.’s “Freedom of Information Act”

[4] There is, of course, an exception to everything (even exceptions).  If your library was the recipient of state or federal grant money, or other conditional funds or program, the records related to that particular matter might be subject to FOIA or FOIL.  But only those records, and not information tangentially related to them (like the e-mails generated on a grant-funded computer).

[5] For a GREAT breakdown on this, see the NY Committee on Open Government’s Advisory Opinion at https://docs.dos.ny.gov/coog/ftext/f17386.html.

[6] I tried to make something suitably obscure up, but lo and behold, there really is a Museum of Asphalt!  It’s in Sacramento, California.  Let’s pretend this one is in New York.

[7] I know this scenario is likely causing some archivists out there an all-too-familiar pain.  I am sorry, but this is how it goes, right?

[8] The FOIL guidance on this page—which included library-specific topics—is fascinating.  My new G-rated fantasy starts with a walk in a wind-swept pine forest, and ends with unlimited free time to rummage around the opinions there.

[9] I told Sara Durling that if the New York State Archives ever does create this sort of job, they should call me, because what a cool job.

[10] If that entity is a contractor for the FOIL-able entity, performing a government function (like a microfilm service), that’s a different story.

 

Tags: Laws, Public Records

Topic: Salaried/Non-Exempt Employees and Compensatory Time - 11/14/2018
It is not uncommon in small non-profits and higher education institutions to find an employment cl...
Posted: Wednesday, November 14, 2018 Permalink

MEMBER QUESTION

It is not uncommon in small non-profits and higher education institutions to find an employment class called Salaried/Non-Exempt. If this person is not paid annually above the minimum salaried/exempt threshold AND their standard work hours fall below 40 hours, what are the laws governing the hours between standard work hours and 40 per week, and how are they applied?

For example: A library manager paid $32,000 per year, paid bi-weekly whose standard work week is 32 hours. If this manager works above 32 hours but less than 40, the library pays the manager compensatory time. 

How long after the accrual of this time is the library legally required to pay for the hours worked - either through time used or in money? 
And if in money, is it the hourly rate gained by annual "salary" / (standard work hours x 52)?

Finally, what if the library manager sought compensatory time over financial compensation as the better benefit? Do they have a choice?

WNYLRC ATTORNEY'S RESPONSE

This is a complicated array of questions, involving a high-stakes area of law…so we’ll take this in stages.

Salaried/Non-Exempt

The member starts by evoking an interesting phenomenon: “Salaried/Non-Exempt” employees; workers entitled to mandatory overtime, but paid via a salary.

This is an employment category that, for a variety of reasons[1], is moving out of fashion…but it is still widely used in 2018.

For purposes of the member’s first question, the important thing to know is: behind the scenes, a “Salaried/Non-Exempt” employee still has an hourly rate.  This is true whether they work a regular week of 20 hours, 32 hours, 40 hours, or even 45 hours (a concept called “straight time”).  The hourly rate is determined “by dividing the total hours worked during the routine week into the employee's total earnings.”[2]

So, as asked by the member, what are the laws governing “Salaried/Non-Exempt” workers who routinely work under 40 hours?  The same laws that apply to those who work 20, 40, or 45.  And one of those laws is the Fair Labor Standards Act.

 

The Fair Labor Standards Act[3]

The Fair Labor Standards Act (of “FLSA”) is a nation-wide law that ensures certain basic protections for certain types of workers.  One of its many protections is requiring time-and-a-half payment for covered employees working over 40 hours a week.

“Non-exempt” is the awkward but generally accepted term for an employee protected by the FLSA.  The phrase “non-exempt” arose from the FLSA’s “exemption” of many employee categories[4] from its protections…meaning those employees don’t have to be paid for overtime.  

The Byzantine nature of the FLSA’s exemptions and inclusions can be confusing. For example,  an “administrative” position with sufficient authority, meeting minimum salary levels (with no pro-rating for those who work under 40 hours[5]), may be classified as “exempt” under the FLSA.  But another job that sounds just as “professional” might be “non-exempt.” 

But the member’s questions pertains specifically to those who are “Salaried/Non-Exempt,” so the rest of this response pertains only to employees entitled to overtime.

 

Comp time

The second half of the member’s submission deals with comp time.  What is that?

Under both state and federal law, “Compensatory Time”—or “comp time”—is paid time off earned by government employees in lieu of FLSA-mandated overtime.

How does this work?  If their employer offers it, non-exempt employees of municipal employers can bank time off, working 45 hours one week, 35 the next…and get paid the same for both weeks.

The “comp time” exception was added to the FLSA in 1985 to help states and municipalities confronted by the need to pay overtime.  It is a tool to stabilize civil service budgets (NOTE: although the member referenced private not-for-profits and education institutions, FLSA-governed comp time is not a tool available to private employers).

How long does a qualifying library have to pay out the comp time?   Per the FLSA, one base-line rule is that after 240 hours have accrued, the employee must simply be paid time-and a half[6].  But check out the plethora of compensation memos on file with the New York State Comptroller!  The contract or policy implementing it can set a wide variety of different terms for using it, and for cashing it out.   So there is no base-line answer, except to say: an employer must follow not only the law, but the rules they set…and should have a good system for ensuring both are followed (and again, that is only for public employers).

And as for the member’s last question: what if a librarian—any librarian—simply wants to choose “comp time” over mandatory overtime?  If FLSA-governed comp time is not available, a non-exempt employee cannot waive the requirements for mandatory overtime.  New York likes its workers to have certain basic protections, and this is a big one. 

 

Final take-aways

Private employers must pay salaried/non-exempt employees their guaranteed salary, and must also compensate such employees for hours in excess of the hours of a regular pay period (based on their established hourly rate).  In addition, hours in excess of 40/week must be compensated with time-and-a-half.  And finally, any "time-shifting" that might be allowed within a pay period cannot go beyond the pay period.  Extra hours worked in a week cannot be swapped from one paycheck to the next; non-exempt employees must be paid for the time they work, within the appropriate pay period.  

But this is generic, base-line guidance. Any library grappling with questions like those posed by the member should use the services of a lawyer or HR professional (who knows when to call a lawyer) to resolve them. 

After all, libraries operate as centers of information and transparency!  Confidence about the clarity and legitimacy of employee working conditions should be considered mission-critical.

 


[1] Mostly having to do with the mandatory base salary levels set by the state and federal governments.

[2] Part 142 of Title 12 of the Official Compilation of Codes, Rules, and Regulations of the state of New York (Cited as 12 NYCRR 142), § 142-3.14

[3] This is the law the employees in the member’s question are “non-exempt” from…meaning they fall under its protections…one of which is to be paid overtime rates when hours in a given workweek exceed 40.  The inclusions and exclusions are found in https://www.law.cornell.edu/uscode/text/29/207.

[4] Too many to list here.

[5] See U.S. Department of Labor Advisory Letter FLSA2008-1NA.

[6] See 29 U.S.C. §207 (o)(a)(3).

 

Tags: Management, Salary

Topic: Pornography, Public Computers, & Library Policy - 11/14/2018
Pornography and public computers in libraries have gone hand-in-hand for some time and I'...
Posted: Wednesday, November 14, 2018 Permalink

MEMBER QUESTION

Pornography and public computers in libraries have gone hand-in-hand for some time and I'm doing some research on how library policies should handle addressing this in a realistic and proactive way. The question that I am researching is whether or not it is legal to explicitly list pornography as something that cannot be accessed on library computers. I understand ALA and the Intellectual Freedom Committees stance on this issue as well as the first amendment ramifications and I am certainly not advocating for censorship, however, I've seen several policies that have tried to circumvent the issue by having vague, unhelpful policies and others that have flat out said that it is not allowed. Any clarifying help from a legal standpoint would be appreciated. 

My understanding is that it would not be constitutional to have a policy restricting pornography, however, there could be something in the policy that restricts the displaying of pornography or other offensive content. 

Thank you.

WNYLRC ATTORNEY'S RESPONSE

Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission.  Such guidance would cut into the fundamental heart of a library’s mission. 

But there is a way to achieve your underlying objective:  Focus on civil rights.

How does a “focus on civil rights” keep porn off library computers, you ask?

Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place?  The answer is pretty simple.  Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites--[1] no one wants to work or congregate in a place where other people are watching porn.

At best, it’s icky.  At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too).  So in New York, where the stakes for a sexual harassment claim have never been higher[2], providing a porn-free environment is an unquestioned goal at most places of employment[3]…including libraries.

And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another?   How does a library remain a beacon for the first amendment, but stand as  a bulwark of equal access and fair treatment, too?

This balance can be achieved.  The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way. 

Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:

The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.

Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior. 

Examples that may require staff to ask you to modify behavior include, but are not limited to:

  • Prominently displaying content featuring racial, gender-based, or religious invective or insults;
  • Prominently displaying scenes of violence;
  • Prominently displaying sexual content;
  • Printing and/or prominently displaying materials in way that appears to target others.

Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access.  Modification could include:

  • Agreeing to move the material on another table at a less trafficked area;
  • Scheduling use of a shared resource to ensure predictability of display;
  • Collaborating on a solution that ensures optimal access to content as well as a safe and respectful environment for all.

In some cases, however, “modification” may simply mean a request to discontinue the behavior.  Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.

Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.

Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere. 

By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too.  And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.

What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech.  However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.”  Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.[4]

Here is an example: let’s say I am working on book about inter-generational trauma.  With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era.  At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago.  She gets very emotional, and the reference librarian notices.  Using the policy, the librarian could then say: “I see you are working on an important project.  Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others?  That would help us serve you while also making sure the reference area is welcoming to all.” 

If I say “yes,” and move, we all move on.  If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.

How could this work with a patron accessing porn on a public computer?  The librarian states:  “This is a public area[5] that serves many people, and its environment must be respectful of our visitors and employees.  What you are viewing is not consistent with that requirement, so it cannot be displayed is this area.  Please stop now.” 

If I say “yes,” and move, we all move on.  If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.

This is what is called in first amendment jurisprudence a “time, place, and manner” restriction.  Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.”  It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.

I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role.  But the essential function of libraries rests on the ability of librarians to make content-based decisions.  In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on. 

The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy.[6]  In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers.  When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions. 

Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well.  A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula.  Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.

Balancing conflicting civil liberties requires careful analysis and diplomacy.  But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn.[7]  That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.

Thank you for this important question.



[1] The only reason I know this is because I am a copyright attorney.  No, really.

[2] See the new laws passed in 2018 about increased employer liability for sexual harassment.

[3] Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.

[4] See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.

[5] I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.

[6] This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees.  It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.

[7]I am not a judge, so I get to have a definition!  Here is it:  “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”

Tags: Policy, Sexual Harassment

Topic: Copyright Liability For Programs Using Audio/Video Recordings - 10/31/18
Does our library incur any liability when a program presenter uses our facility and presents a pro...
Posted: Wednesday, October 31, 2018 Permalink

MEMBER QUESTION

Does our library incur any liability when a program presenter uses our facility and presents a program at our behest that includes music, either a previously-issued recording of music not original to the presenter, or a live performance of a piece of music composed by a person who is not the presenter? What about a presenter who just contracts to use the venue, without library sponsorship of the program? What about the capture of such a performance and our streaming it or recording it for later posting on our website or broadcasting it on our community television as a public service? If so, what is the best way to protect ourselves?

WNYLRC ATTORNEY'S RESPONSE

This is a huge question! 

I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.

But I will limit this reply to 5 answers I think are most helpful to the average library:

Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter.  In a copyright case, everyone who contributed to the infringement is generally named as a defendant.  So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.

Answer #2: Yes, there are several things a library can do to protect itself!  When it comes to a performance by a third party, the best option is a properly worded contract. 

For any use of its facilities, the library should have a stock contract that provides for the following:

1) verification that the performer has all the licenses and permissions it needs to perform;

2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,

3) proof that the user has the right insurance to back up to their indemnification. 

The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant?  Owner? What type of insurance do you have?). 

A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.

Answer #3:  That said, there are several types of performance that are exempt from copyright infringement claims.  For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance iswithout any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” and there is no “direct or indirect admission charge.” 

In other words: no transmission + no money + no commercial advantage = no problem. 

Of course, “commercial advantage” can be a tricky phrase.  If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed.  When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser?[1]  Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.[2]

Further,  is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).

That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).  

And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party.  The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!

Answer #4:  If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners.  They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.

Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries[3].  But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.[4]

Answer #5:  The member’s final question addresses recording a performance at the library, and posting it online. 

As the question suggests, this is where you have to be very careful.  A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way.  Under 17 U.S.C 1101, it could even result in a claim by the performer!  So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.

So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance?  No.  While there may be sociological reasons to do that[5], if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.”  Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.

And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go[6]” at the local library?  Unless it goes viral, it’s not too likely.  But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.

Thanks for the questions!

 


[1] Maybe they are one of those rock stars that hate libraries.  I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.

[2] I am of course kidding about Metallica.  Please don’t sue me, Lars!

[3] I checked the PACER database of federal law suits and could not find any cases brought by them against a library. 

[4] For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”

[5] I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.

[6] Since I have a 4-year-old, I have this song memorized.

 

Tags: Copyright, Music, Online Programming, Social Media

Topic: Copyright & Posting Images of Artwork From Collections - 10/29/2018
We are planning to put together a public page with information on various artworks donated to ...
Posted: Monday, October 29, 2018 Permalink

MEMBER QUESTION

We are planning to put together a public page with information on various artworks donated to our university. We'd like to post an image of the art, information on where it is on campus, information on the artwork itself, etc. 


Our question is with regard to copyright. I know the artist still holds the copyright, so my question is whether there is an exception to the copyright law that will allow us to post an image of the artwork for these purposes? We're looking into adding a watermark to the image and setting it to not allow users to save the image directly (although we know they could still take a screenshot). 

Thank you in advance for your advice!

 

WNYLRC ATTORNEY'S RESPONSE

This sounds like a great project…a public page providing a guided tour of art throughout the campus, with maps, information, and pictures to help the viewer find the works.

But you’re right, if they haven’t expired, the rights are still the property of the artist—or their heirs, or any third party they were sold to.  And the digital image you create could infringe those rights.

There is no one catch-all “exception” to copyright that completely avoids this, but there are some steps you can take to keep your institution on the safer side of the law. 

Here they are, in descending order of strength and certainty:

1.  Verify that the works are actually still protected by copyright.  Anything from before 1923, for instance, is no longer protected.  If you want to showcase 50 works, and 25 of them are from before 1923, you’ve just reduced your concerns by half!

2.  If your campus has an art registrar (a position distinct from an admissions registrar, but with a similar flair for detailed record-keeping), ask them if the donation came with any assignment or license of copyrights.  Sometimes, the donor—especially if they were the artist—will give limited duplication and display rights for purposes of promoting the work.  While by no means a certainly, it is worth checking out.

3.  If the rights are still valid and no license has been obtained previously, it is possible to ask for permission now.  A simple letter—perhaps sent in coordination with your department for Institutional Advancement—could ask:

Your lovely work, TITLE, was donated to our university in YEAR.  We are hoping to secure your permission to duplicate the work so we can show a full-color reproduction on our website.  The image would be used to illustrate an online and print guided tour that showcases our more valued works of art, including TITLE (the “Work”). 

If you still own the copyrights and can give permission, please check one of the circles below, sign in the space below, and return this letter in the accompanying self-addressed, pre-stamped envelope:

o   I hereby license the university to use the Work without any restrictions, in any medium whatsoever, for any purpose whatsoever.

o   I hereby license the university to duplicate, publish and display the Work solely for the use described in this letter, in both print and via the internet, with no further restrictions or conditions.

o   I hereby license the university to duplicate, publish and display the Work per the following terms:_________________________________________________ ______________________________________________________________.

Thank you for considering this courtesy to our university.

Very truly yours,

 

[YOUR NAME]

ACCEPTED AND SIGNED:________________________      

                                                            [ARTIST NAME]

on __________________

               DATE    

4.  “Claiming Fair Use,” version 1: This takes advantage of the formula for using a copyrighted work without permission, created by Section 107 of the Copyright Act.  Here’s what you do: carefully write out a description of your initiative, and why it is important that the public know of and have a visual cue be able to find these works.  Then take a photo of each artwork…not head-on and alone, but at an angle and with a live person—perhaps a student—interacting with the work.  Make sure the art is not duplicable from the digital image, and make sure that image is more about the person viewing the work, and its location, than the art itself.  Generate a description of this image that speaks to what is happening in the photo, including how people interact with the work.  Include not only the image, but these observations in your guide, letting people know they can see the actual work in person.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages1.

5.  “Claiming Fair Use” Version 2: This is also an approach under 107.  Generate very low-resolution, watermarked images as described in the member’s question, and again, document the value of being able to use a limited visual element to help people find that specific work.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages.

And there you have it: no magic bullet, but some options that, if combined, can help you create an infringement-free, beautiful guide to the art on your campus.  Of the five options, “1,” “2,” and “3” are by far the most prudent, so try those first, and then, only if you need to, consider options “4” and “5.”

I hope fate is kind, and some of your artworks pre-date 1923, or their owners are generous and easy to find.  Good luck!



1 17 U.S.C. 504(c)(2)

Tags: Copyright, Donations, Fair Use

Topic: Finding A Lawyer - 10/29/2018
We are looking for a lawyer to provide us with advice on numerous issues, including whether librar...
Posted: Monday, October 29, 2018 Permalink

MEMBER QUESTION

We are looking for a lawyer to provide us with advice on numerous issues, including whether library employees are employees of the library or the village, whether the municipal retirement plan is open to or perhaps required for library employees, limitations on investments, limitations on fundraising, guidance on setting up a friends group and/or changing our charter to association library, as well as other questions.


In talking with a number of lawyers, we have found no one with experience with both municipal law and education law, ie public libraries-related law.

 
What suggestions or referrals can be provided to help us find the appropriate legal guidance for a rather wide array of questions, that have a municipal library bent?

WNYLRC ATTORNEY'S RESPONSE

Here’s a typical scenario confronting the modern library board president: on the day the director alerts her that a patron is using the copiers to copy sexually explicit material—taking care to ensure the patrons and employees can see it— a clerk has threatened to complain to the union if the municipal lunch room isn’t made accessible to library employees.  The board chair looks compassionate and sighs…she’ll add these to a list that already includes:

a) trying to figure out if the library actually has a lease for its premises, where it has operated since 1892, but no one can find the deed or contract;

b) assessing if there’s enough money in the endowment to fix the elevator before there’s a complaint under the ADA (and can those funds even be used that way?); and

c) revising the employee handbook.

Municipal law, education law, employment law, intellectual property, and civil rights…all meet at the crossroads of “library law.”  Libraries also have unique protections under New York’s CPLR, and as they become increasingly critical providers of technology, must be adept at interpreting software licenses, too. 

The array of legal issues is endless.  How does a library find the right lawyer? 

To make sure your library can find the right fit for you, I have five answers.  But first, I have THREE IMPORTANT PRIMARY CONSIDERATIONS

Primary Consideration Number One: remember that legal services can be an expenditure like any other.  If your library is subject to a procurement policy, you may need to develop a “Request for Proposals” (“RFP”) to seek the service.  So before you try and of my suggestions below, rule an RFP in our out.

Primary Consideration Number Two:  The New York Stated Education Department’s Division of Library Development is a great resource for information, particularly on structural/charter, budget, and grant matters.  They are there to help you, so don’t hesitate to call (even if they end up telling you to find a lawyer—and they might—you’ll have a nice chat).

Primary Consideration Number Three:  NYLA, New York Library Trustees Association, and your regional council may have some resources for you, too. 

Of course, be careful how in-depth you go when describing your issue(s) to these resources, since these communications would not have attorney-client privilege.

Okay.  Here are “Five Ways to Find a Library Lawyer:”

1.         In many counties, the local Bar Association runs an “attorney referral service.”  Attorneys who participate in the service will self-identify areas of experience and interest.  For many such services, the first 30 minutes of consultation with the lawyer they send you to is at a greatly reduced rate.

2.         Almost all lawyers1 enjoy “knowing someone.”  So even if they don’t practice in those areas, ask every lawyer you know for a referral.  Someone will eventually “know someone” who practices the type of law relevant to your library’s current needs.

3.         Ask a local elected representative or municipal employee about lawyers they know who practice municipal law, or check to see if your local college or university has a “general counsel.”  This could put you on the trail of attorneys with the right array of municipal, education and employment law experience.

4.         Members of any regional library counsel or network can separately contact the provider of this “Ask the Lawyer” service: The Law Office of Stephanie Adams, PLLC, at adams@losapllc.com.  If there is no conflict of interest, and your issue is within our experience, we can help—or, we can help you find the right attorney (not every issue needs a “library lawyer”).  The contract for such work would be separate from the service your regional council or network pays for, but you get the same hourly rate for most types of work.

5.         Your insurance carrier may have a list of law firms near you to help out, and may even have some internal resources it can provide for policy and compliance-related matters.  Call your broker or representative to inquire (remember, your insurance carrier has a high motivation to you connect you to timely legal advice and avoid a claim!). 

When selecting a lawyer, is very appropriate to asking about past work, rates, and proof of malpractice insurance coverage.  The terms of any services should be confirmed in a signed “retainer agreement” or “letter of engagement.”  And don’t be shocked if the person you talk to says “I would have to research that.”  In my experience, libraries come up with very complicated and unique questions.  An experienced attorney may be able to give a quick tentative answer, but will then almost always want to check the latest case law, read your bylaws, and review other factors before committing to final, written advice.

Good luck!



1 Do not rely on a board member who is a lawyer to provide the legal services, but DO ask them to help find the right person.  As has been written extensively in various guides from the Attorney General’s Charity Bureau, and the New York Bar Association, professionals sitting on not-for-profit boards owe the institution not only a fiduciary duty, but also the skills they bring to the table…but they are board members, not professionals under contract (this pertains to accountants, too).  It is a conflict of interest for a board member to be hired to provide professional services to a board s/he sits on…even if it is pro bono.  That said, they can absolutely (and should be) on the ad hoc committee helping to oversee the service or particular matter for the board!

Tags: Laws, Management

Topic: Digital Movie Codes - 10/15/2018
Question 1 Recently, a patron asked what our library does with the digital movie codes that come...
Posted: Monday, October 15, 2018 Permalink

MEMBER QUESTION

Question 1

Recently, a patron asked what our library does with the digital movie codes that come with some of the DVD and Blu-ray disc we purchase. We have been throwing those codes out, so he wanted to know if we could give those codes to him (he would be willing to purchase them).

I would like to know the legality of selling them to patrons to raise funds for the library. What about including them in prizes? Is it covered by the First-Sale Doctrine? What if the fine print on some read "sale or transfer prohibited?" The discs are purchased with tax-payer money, does that further complicate the situation?

 

Question 2

When purchasing DVDs/Blu-rays at a library there are often alpha-numeric Digital Movie Codes available to receive a digital copy of the movie. These licenses seem to be tied to a single person that cannot be used or circulated in any easy way. Is there anything a library could use these licenses for, such as public viewings (as long as they are covered under the appropriate movie license) or giveaways at the library. Or are these Digital Movie Codes best to be thrown away because of the copyright restrictions surrounding digital content? 

WNYLRC ATTORNEY'S RESPONSE

Two questions about a creative use of resources!  Truly a joy to behold.  Unfortunately, this is one of those questions where I have to be a killjoy.

Before I dig into why, let’s clarify: both members have asked about the “Digital Movie Codes,” or alphanumeric keys, on (or in) the packaging of certain DVD’s, Blu-rays, and 4K/UHD discs.  Through a process called “redemption,” the holder of such a code can download a copy of the movie in the package. 

After “redeeming” the code, the holder can download the film to their phone, tablet, or computer.  The idea is that once you’ve paid for the hard copy, even if it is copyright-protected, the purchaser should be able to view the movie on the medium of their choice.[1]

So, can these fantastic codes be used, transferred, or raffled off by a library?  Because of the diversity of licensing terms[2], there is no one, definitive answer.  But my time researching showed that a growing number of these codes are supported at the back end by a company called “Movies Anywhere.” 

Sensing their model is vulnerable to access code re-sale, Movies Anywhere’s Terms of Use firmly state:

Digital codes originally packaged in a combination disc + code package (for example, a combination package that includes a DVD, Blu-ray, and/or 4K/UHD disc(s) and a digital code) are not authorized for redemption if sold separately. By redeeming one of these codes, you are representing that you, or a member of your family, obtained the code in an original disc + code package and the code was not purchased separately. Your representation is a condition of redemption of the code and of your obtaining a license to access a digital copy of the movie. To read all terms and conditions applicable to using your Movies Anywhere account, click here. If you agree, click the REDEEM button above.

See that clause “you…obtained the code in an original disc + code package”?  THAT is what kills the joy and puts the kabosh on the clever transfers and re-uses posed by the members.  Simply by redeeming the code, the person who acquired it from the library (whether by gift, purchase, or luck of the draw) would be in violation of the terms of the license…not a very patron-friendly practice (although some patrons might disagree)!

But wait, there’s more.

Wouldn’t it be nice if the library could have a DVD-viewing room where the digital content of purchased movies was watchable?  That, too, is likely forbidden, since as of this writing, participation in “Movies Anywhere” is limited to “individuals.”[3]  “Companies, associations and other groups may not register for a Movies Anywhere account or use the Movies Anywhere Service,”  states Section 1.a.  Libraries, while not generally thought of in such terms, are “companies,” so arguably, even redeeming the codes to put the content on library-owned technology is not allowed.

Of course, when it comes to these codes, check the fine print.  If they are through a service that doesn’t bar transfer (or on the flip side, doesn’t require the actual purchaser of the package to be the redeemer), you may be able to proceed as envisioned.  That said, I doubt many movie companies will depart from the Movies Anywhere model.  Content providers have had almost two decades since the “RIAA[4] wars” to get this right, and they don’t want to leave any revenue on the table. 

How enforceable are these license restrictions?  We’ll see.  The industry is suing when the terms are violated, and defendants are fighting back (see ongoing case Disney Enterprises, Inc. et al v. Redbox Automated Retails, LLC, in federal court in the Central District of California).  That said, libraries are in a different place than most “companies,” when it comes to restrictions on information.  If there is ever a compelling, information-access reason—or a disability accommodation reason—to use one of the codes, that should be explored. 

P.S. I saw a lot of reasons why libraries can’t give away or sell these codes, but I saw nothing that stops patrons from buying the hard copy, using the code, and eventually donating the hard to the library.  THAT would be within the “First Sale” doctrine.  So while I know that’s the obverse of what the members envisioned, perhaps that can restore some joy to these questions.

Thank you.


[1] Of course, “redemption,” which requires an account, also means the content provider gets a view into your movie choices, viewing habits, and choice of media.  But I will save a privacy rant for another day!

[2] Disney, Lionsgate, Fox…each studio has its own special formula for redeeming these codes. 

[3] Who are “legal residents” of the U.S., no less.

[4] The fight over digital copying of music, eventually leading to many fans swearing off Metallica.

 

Tags: Fair Use, Digital Access, First Sale Doctrine

Topic: Sexual Harassment Training - 9/26/2018
Beginning on October 9, employers in NYS are required to make interactive training which meets sta...
Posted: Thursday, September 27, 2018 Permalink

MEMBER QUESTION

Beginning on October 9, employers in NYS are required to make interactive training which meets state outlined minimum standards to their employees to combat sexual harassment in the workplace. As a cooperative public library system which serves a membership of public libraries including those which employ 1-3 staff members, we would like to support our members by providing the training centrally. We have no governing or financial authority over these independent libraries. Their employees are not our employees.

Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?

Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?

Do trustees serving on library (or any non-profit) board need to participate in this training and if so, do they need their own session?

It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state created training module. Is that true?

Thank you!

WNYLRC ATTORNEY'S RESPONSE

The member is right: New York State has taken the huge step of requiring ALL employers—whether  they employ one, or one thousand—to train their people to recognize and report sexual harassment and illegal retaliation.

But this training requirement does not stand alone.  Also as part of the amped-up law:

  • All employers must have a sexual harassment policy meeting new content requirements.
  • All employers must have a sexual harassment reporting form meeting new content requirements.
  • All new employees must be trained about the sexual harassment policy within 30 days.
  • Liability now extends to complaints by independent contractors and “gig” workers[1].
  • Sexual Harassment claims cannot be resolved via mandatory arbitration and non-disclosure clauses (with some exceptions).

The resulting need to revise policies, adopt reporting forms, and organize trainings has hit many strategic plans and budgets hard.[2]  Libraries, who always feel budget pressure, are among the not-for-profits feeling the pinch.

Since this law passed along with the budget this spring, I have been counselling clients that this training requirement should not be viewed as simply another unfunded mandate (although it is), but an opportunity.  What kind of opportunity? An opportunity for library leadership to gather and train their valued people to recognize and reject discriminatory behavior right from the start.

But at the end of the day, no matter how worthy the topic, convening personnel and hiring a qualified trainer costs money.  Which brings us to the member’s great questions (underlined below).

First Question: Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?

My answer to this is…Hold on.  Before we talk about resource-sharing, let’s talk about scope:

Trustees, interns, and volunteers should be part of this training.  [3]

Why trustees? When a small institution has a concern related to sexual harassment, trustees become front-line decision-makers.  Further, trustees are generally the “supervisors” of directors—and the new law specifically requires that supervisors be trained.  And finally—but most critically—library trustees set the tone for mission and leadership at the library.  You cannot change or evolve a library’s culture without trustee involvement.

Why interns and volunteers?  This new law comes with liability for harassment directed even at “gig” workers.  This liability can be caused by any person acting on behalf of the library—even a volunteer.  So every person[4] who works at the direction of your institution should know this law, and how to work within it, together.

With that scope of attendance in mind, based on the guidance from the state thus far[5], if the policy and reporting form track the model policies provided by the state: my answer is YES.

 

Second Question: Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?
NO! In fact, I believe a library would lose much of the value of the sessions if it did so.

Why is that?  While the stark requirement of the policy is to review the law, a side benefit of such a training is creating an esprit de corps for combatting bad behavior together.   That can best happen if each level of authority—from trustee, to supervisor, to employee to intern or volunteer—hears and honors the obligations of the other.[6]

If the different authority levels are balkanized into different trainings, a valuable opportunity to build trust and accountability in service to the library’s mission of equal access is lost.

 

Third Question: Do trustees serving on a library (or any non-profit) board need to participate in this training and if so, do they need their own session?

The new law does not mention training trustees or directors specifically[7].  But since boards generally supervise the Director or Executive Director, and are responsible for a library’s legal compliance in all matters, it is my conclusion that library trustees must be trained. 

And—although my comments above recommend against it—they can be trained separately.[8]

There is a related area, however, where separate training might be appropriate and warranted.  In this day and age, governing boards should know: 1) the library’s insurance coverage for sexual harassment/discrimination claims, 2) the procedure for notifying the insurance carrier of a claim, and 3) how and when to call in third-party investigator to look into a complaint.  Having trustees aware of these things, before a mandatory training under the new law, would be optimal.

 

Fourth Question: It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state-created training module. Is that true?

Let’s start this answer with what a library is looking for when arranging the required training—a required element of which is a live, in-person trainer that attendees can ask questions of.

What does the library need from this trainer?  At bare minimum, the trainer needs to provide a session that meets the requirements of the law.  Therefore, my guidance to those arranging trainings for a single entity is that the contract or hire letter contain assurance such as:

On [DATE/S], [PROVIDER] will provide [SINGLE INSTITUTION] with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form.  When the training is complete, trainer will certify that all elements for sexual harassment trainings required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.

For a multi-institution training organized by a membership alliance or network, I suggest that the contract or hire letter contain some extra details, such as:

On [DATE], [Provider] will provide [Institution]’s members with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form.  When the training is complete, trainer will certify to each institution that all elements required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.

As this is a multi-institutional training, to enable certification for each attending institution, the following practices will be observed:

  • Registration must be complete no more than [one week] before the session.
  • [Institution] must provide trainer with a copy of each participating institution’s sexual harassment policy and reporting forms, no later than [one week] before the session.
  • Each attendee shall register and sign in on a form that notes if they have a supervisory role.
  • When signing in, each attendee shall be given a copy of their institution’s sexual harassment policy and reporting form, and shall sign to acknowledge receipt.
  • When signing in, each attendee shall be given a name tag that notes their institution, and if they are a supervisor.
  • During the training, each attendee shall be addressed by name and given at least one opportunity to role-play or rehearse recognizing or reporting harassment or retaliation.

Attendance is limited to 5 institutions, 60 attendees.[9]

I based this guidance on what will no doubt be the next chapter in this legal saga: allegations of liability due to failure to properly update policies and train personnel. 

The “certification” approach I am suggesting above is not required by the new law.  Rather, it is designed to help your members, or your institution, create a record that will easily demonstrate that they endeavored to follow that law.  It is designed to show that, even if a system or group had to share resources and do a mass training, a truly interactive and meaningful experience was intended.  This is a key element of limiting liability.[10]

 

Conclusion

Of course, in a perfect world, people attend sexual harassment trainings not only to limit liability and because they are compelled to, but to learn how to ensure such behavior is rare, quickly called out, and immediately corrected.

The importance of such training cannot be over-stated.  When I was a 16-year-old page at a public library in the 1990’s, I was harassed by a patron.  I was too young and inexperienced to know my rights, or what to do.  Fortunately, I had the good luck to be on shift with an amazing assistant director[11].   When the bad behavior started, this graceful woman walked over to the patron, and simply said, “This has to stop now.”  And despite his displeasure, it did.[12]

Many decades later, her unambiguous, dignified, and immediate action inspires me, as I hope it does you.

Done right, these mandatory trainings are an opportunity for your library’s team to practice this type of skillful handling.  It is also a chance for supervising staff--who now have the term “mandatory reporter” in their job descriptions—to be assured that they are supported and backed up by informed and committed trustees. 

Finding ways to collaborate and share resources to make such training and practice as accessible and rewarding as possible is a great initiative.  Thank you for this excellent array of questions.



[1] Uber drivers who transport your interlibrary loans, for example.

[2] The State’s late issuance of required guidance—released less than 2 months before the effective date—didn’t help, either.

[3] I know, that’s not really the question.  But this is very, very important.

[4] Yes, some of those volunteers might be very young!  It will be the job of your trainer to train your employees both well, and appropriately.

[5] September 26, 2018. A I write this, they are assessing thousands of public comments—including some submitted by me—and that may change the basis of my advice.  So if you are reading this in 2019, please check for updates.

[6] Just so you know, “my firm belief” is based on years of conducting anti-discrimination trainings, ten years as an in-house counsel at a university, and time as an Interim HR Director.  I am not just going with my gut here.

[7] Nor does the current model policy, report form, or training materials. Considering that New York is a hive of corporations, this void is rather mind-boggling, but these State resources were compiled with haste.  I imagine this will be addressed in later versions.

[9] Or some other reasonable number.  This is just a recommendation.  Basically, you don’t want the number of institutions or attendees to make the “interactive” requirement arguably meaningless.

[10] But by no means the only element.  The most important one will be following the new law, and documenting that you are following it!

[11] Bernice Cosgrove. 

[12] The patron was quite upset.  In retrospect, he may have had some mental health concerns.  These matters often come with complications that require tact, diplomacy, and compassion.

 

Tags: Policy, Sexual Harassment, Trustees

Topic: Printing - 9/4/2018
The director of the college print shop has come to me for copyright assistance. Our faculty often ...
Posted: Tuesday, September 4, 2018 Permalink

MEMBER QUESTION

The director of the college print shop has come to me for copyright assistance. Our faculty often ask for photocopies of materials for distribution to students in class. She asks the faculty member if they have the appropriate permissions for making copies but is not always convinced by their answers. Is there any form she can ask faculty to sign attesting to their right to reproduce the materials that will protect the college in the case of copyright infringement? Thank you!

WNYLRC ATTORNEY'S RESPONSE

This question seems simple, but it actually involves some high-end concepts of business law and liability.[1]

Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity.  In other words, although they may have a distinct identity within their institution (“The Michael  Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).

Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop.  This means that what the shop does, the entity does…including alleged infringement.[2]

This same unity generally applies to employees, too.  In a body of law called “Master and Servant,”[3] if an employee is performing a task related to their job, and not deliberately violating employer policy or the law,  for purposes of the legal system, the employee’s actions will generally[4] be imputed to the institution. 

This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts[5] to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).

This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities?  Do they need to educate their co-workers on copyright risk?  Are they expected to protect the entire college?  Each institution has different policies and job descriptions that answer those questions differently.

That said, is there a simple approach that can help with this?  Yes.  For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness.  It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution[6]

NOTE:  All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual.  Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability!  If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution. 

[INSTITUTION NAME] COPY SHOP COPYRIGHT HELPER

Hello!  Thank you for coming to the [INSTITUTION NAME] copy shop to arrange duplication of your class materials.

As an instructor who generates your own copyright-protected material, you know the value of copyrights to others, and you know there are penalties for improper, unauthorized duplication.

Please follow the process below.  When you check “yes” to 1 or 3, we are happy to assist you with your copies!

1. Do you have written permission from the copyright holder or their agent to make copies?

  • Yes
  • No

If “yes,” attach the permission, and let’s get copying!

If “no,” please move to question 2.

2.  Do you have verbal permission from the copyright holder or their agent to make copies?

  • Yes
  • No

If “yes,” please confirm the permission in writing, return to us and check “yes,” above, and we’ll get right on this for you!

If “no,” please move to question 3.

3.  Do you regard this copy as a fair use?

  • Yes
  • No

If “yes,” please fill out the attached [INSTITUTION NAME] fair use assessment form, and we’ll get your copies made!

If “no,” or “I don’t know,” please move to question #4.

4.  Do you find this process frustrating and need help arranging permission to use this material, or more input on fair use?

  • Yes
  • No

If “yes,” please see XXXX at OFFICE LOCATION, who assists with permissions at INSTITUTION NAME.  You can also call them at NUMBER or reach them at EMAIL.  We hope to see you again soon!

DATE:___________________________

SIGNATURE:___________________________

PRINT NAME:______________________________

MATERIALS (Title, number of pages):_______________________________

 



[1] Fun!

[2] This is one of the reasons many institutions opt to host a separate company for on-campus duplication services.

[3] I know!  The law needs to move on.  Perhaps “Captain” and “team member” can replace this.

[4] That said, never assume that is the case!  Every allegation of liability must be carefully reviewed by a lawyer, as there are many exceptions and precise formulas that control such things.

[5] Demonstrable, good-faith effort to abide by the law can actually limit damages when copyright infringement is attributable to a not-for-profit education institution.

[6] If you don’t have either or one of these, share this RAQ with the decision-maker at your institution who could make that happen.  Both the form, and a person who can facilitate permissions, are worthwhile risk management investments.

 

Tags: Copyright, Management, Policy, Photocopies

Topic: Employee Sharing - 8/28/2018
Is it possible for a municipal library and an association library to share one employee? The assoc...
Posted: Tuesday, August 28, 2018 Permalink

MEMBER QUESTION

Is it possible for a municipal library and an association library to share one employee? The association library would handle payroll and manage benefits, the municipal library would pay the association library their percentage for the employee's time. Could this happen with two association libraries and one municipal library? Individually, our libraries are unable to offer full-time with benefits, but collaboratively, we could provide a full-time position. What are the legal steps to creating such a job share?

WNYLRC ATTORNEY'S RESPONSE

I have good news, and bad news. 

First, the bad news: most of the legal factors involved do not support this type of “job share.” 

Now, for the good news: the type of capacity-adding at the heart of the member’s question is feasible…with a slightly different legal structure.

What are the legal steps to creating such an arrangement?  For chartered libraries, they are numerous and intricate, but considering the goal (added service), the work might be worth it. 

Here are the factors to consider:

1.  The libraries’ chartered identity

The question cites a potential collaboration between a municipal and an association library.  Just in that coupling, there are issues, since depending on entities’ size and type, the institutions will have different staffing requirements.  When considering a capacity-adding staffing model, those requirements should be kept in mind at all times.

2.  The libraries’ bylaws and staffing policies

Staffing requirements and other factors impacting staffing might be recited in the libraries’ bylaws and policies.  So those documents, too, should be factored into this exercise.

3.  The libraries’ plan(s) of service

Does the resulting staffing schema fit into their respective plans of service? 

4.  Labor law details, such as workers’ comp, unemployment, FMLA, and ADA

Here is where the technical nitty-gritty, and the concerns that generally bar “shared” staff between separate entities, starts.  Whenever an employee is brought on to work at more than one legal entity, it is important to confirm who would actually be the employer, so the arrangement complies with state and federal labor regulations. 

One example of why this is important is workers’ compensation.  Per New York state law, if a worker sustains an injury on the job, that worker is covered by “comp,” and the employer is indemnified for (almost) any personal injury claim.  This protects both the employee (who gets some wage/salary continuance) and the employer (who generally does not face additional liability for the injury).  In a truly “shared” employee arrangement, with debatably two (or more) employers, the resulting ambiguity could result in a contested or denied coverage claim.

Another example of how a “dual employer” arrangement could be risky is revealed by  considering the American with Disabilities Act (ADA).  Under the ADA, employers are responsible for providing employees with reasonable accommodations for permanent and temporary disabilities; failure to do so can result in serious liability (and fines).  But with a “shared” worker, it can be tough to know who would have that responsibility…and be responsible for failing to follow the law.

There are many more reasons along these lines.

5.  Salary equity and benefits-related details

This is a critical one, because employees who are not treated equitably in comparison to other employees can have an array of legal claims.  Examples abound: If one library offers more paid time off than the other, how do the libraries offer the “shared” employee a fair and legally compliant arrangement?  If the libraries have different systems for evaluation and promotion, how does the employee advance?  If one library is found to be treating a particular class of employee unfairly, does that impact the other library?  While minimal staffing at the employing institutions might limit some of these concerns, even if there is one other part-time staffer to compare to, ambiguity could turn into liability.

6.  The actual legal relationship between the libraries and the “shared” employee

From the legal perspective, this is where the rubber hits the road.  For the reasons set out above (and many others), it would be almost impossible for both libraries be “joint,” employers: even if possible, it would likely be too risky.  But with another legal relationship, this resource-sharing might be feasible.

What is that “legal relationship?”  Well, it would depend, but the most feasible solution would likely be one library hiring an employee specifically to add to the capacity of other libraries.  In this model, there would be no “shared,” employment; rather, the first library would offer their employees as extra capacity on a contractual basis. 

In such a “Capacity Contract” scenario, money paid by the second (or third) library would not be a salary/benefit contribution, but rather, a fee for services (that happened to help pay for the salary and benefits of a full-time librarian).  The relationship would need to be carefully set out in a detailed contract and hiring documents that confirmed how any performance evaluation, employee discipline, civil rights, personal injury, and other claims would be handled.  And the factors I list above (starting with the identity of both libraries, and considering the various regulatory, bylaw, and policy obligations they have) would have to be assessed to see if it was even feasible.  Most critical would be: is adding to the capacity of others consistent with the hiring library’s plan of service?

With careful planning by leadership and trustees,[1]and input from an attorney and HR professional, this type of “shared” staffing could be built.  The end result would be:

  • a careful documented analysis of the relevant factors;
  • a carefully developed job description for the capacity-adding employee;
  • a contract between the library or system providing the additional resource and the library served. 
  • Hopefully, many more patrons served!

As I said at the beginning, this could be a fair amount of work.  But if it provides a small library with access to specific expertise and a diversity of talent it might otherwise not be able to afford, it could be worth it.  Just approach the details with care.

Thank you for this important question.

 


[1] In addition to those considerations, although it is not legal, I feel I must mention a quasi-political or strategic element. As we know, once taxpayers, municipal leadership, and other entities see cost-cutting, it is hard to close Pandora’s (newly efficient) box.  So while it is not a legal consideration, per say, being mindful of how any innovations in staffing efficiency will play out long-term is wise.  You don’t want a clever solution to become the tool of a permanent budget cut!

Tags: Management, Hiring Practices, Municipal Libraries

Topic: Librarians & Infringement Claims - 8/27/2018
We are finding that librarians within larger institutions (like colleges and museums) ar...
Posted: Monday, August 27, 2018 Permalink

MEMBER QUESTION

We are finding that librarians within larger institutions (like colleges and museums) are the go-to resource for copyright questions, which could also include institutional copyright concerns.  What should a librarian do if the "question" they are presented with is really an allegation of copyright infringement?

WNYLRC ATTORNEY'S RESPONSE

“Ask The Lawyer” has touched on this topic a bit before.  In our a 9/19/17 RAQ post “Skating the Line Between Helpful Information and Legal Advice,” we discussed the risks posed when patrons and co-workers confuse the helpful attitude and boundless information provided by librarians with legal services. 

The bottom line from that guidance was:

When [asked for legal advice], librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

[the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

The current question takes this issue one step further: what if, when asked to play this front-lines role, the librarian is alerted to a potential claim of infringement against their institution?

Here are a few examples of how this can emerge:

Coach to librarian:  “I thought I would check with you…this guy called us and said we used his photo of the volleyball team on fliers without his permission.  But we’re not-for-profit, so copyright doesn’t apply, right?”

Curator to librarian: “We used a photo of the artist to promote the current installation on Facebook and some photographer is claiming we need a license?  But the artist said it was okay!”

HR Director to librarian: “You are our go-to on copyright.  This person says they generated it on their own time, but we own everything our employees create on our computers, right?”

Sound familiar?[1]

Before anything else, it is important to say: many institutions have an established protocol for handling ANY threat of litigation, be it copyright infringement, slip-and-fall, or breach of contract.  So first and foremost, librarians at larger institutions should know their institution’s policy or procedure for when a lawsuit is threatened.[2]  The risk manager, business manager, in-house legal counsel, or the employee who coordinates insurance coverage is often the point person for this. 

When your institution has such a protocol, the reply to questions that reveal a threatened claim of infringement should be “That sounds like it could be a claim of copyright infringement.  You should refer that the XXX, who handles claims.”  And whether or not the inquirer follows through, to protect both the librarian and the institution, the librarian should then e-mail XXX to say “Today I referred Coach/Curator/HR Director to you, as they were contacted by someone who might have a legal claim.”  This makes sure the legal hot potato doesn’t stop at the library, even if the other employee doesn’t follow through.

Of course, not every place will have an XXX, and not every person will seek advice the moment the threat of a claim arises.  Here are some alternate versions of our three scenarios:

Coach to librarian:  “This guy called us about three months ago and said we used his photo of the volleyball team on fliers without his permission.  We also put it on t-shirts.  Can you look at this “cease and desist” letter?”

Curator to librarian: “Remember that awesome installation?  Well, I’m forwarding you some emails between me, the artist, and his photographer.  They say we owe like $2,000.00 in licensing fees, but it’s fair use, right?”

HR Director to librarian: “I need to send this letter about work-for-hire, can you review?”[3]

In these scenarios, institutional debate or engagement with the claimant is well under way.  Even though things might be further along, and tempers hotter, the priority is still to end the engagement and get the matter in the right hands as soon as possible.  So, even if your institution doesn’t have an XXX, and the situation arrives at your door a little more “hot,” the best thing to say to your co-worker is: “This sounds like a legal matter.  We need to connect you with our attorney.”

If your co-worker has been so kind as to refer the (often angry) claimant to you without warning, and you are now on the phone with them, it is generally wise to:

1.  Listen, and make notes of what the claimant is saying.

2.  DO NOT ARGUE, DEBATE, or SUPPLY INFORMATION.

3.  Use your customer service skills to simply say “This sounds very important.  I have made a note, and will make sure someone gets back to you by [date].”

4.  When arranging appropriate follow-up, minimize internal e-mail discussion, which could become discoverable evidence.  Remember, the back-and-forth the employees engage in, unless it involves an attorney providing legal advice, is not subject to attorney-client privilege.

5.  Get that legal hot potato to your attorney or insurance carrier and get out!

I realize that budgets are tight in the not-for-profit world, and not everyone has an attorney in-house or on call.  This is where your insurance carrier could be a key player.  Most bigger institutions have some form of coverage that addresses copyright.  Your carrier does not want you to spend time arguing with a claimant, generating potentially damaging evidence!  So in the absence of a lawyer, your insurance liaison and carrier (who will use a lawyer) might give your institution a place to send the “hot potato.”

The bottom line: every institution has a slightly different way it approaches litigation risk[4], but every institution should have an established way.  Making sure library staff are aware of and comfortable with their institution’s protocols, and are supported in those protocols by trustees, officers and key personnel[5], are the keys to this issue.  The statutory damages and mandatory attorneys’ fees often involved in copyright litigation make this a high risk management priority.

Librarians should be on the front lines of information access and fair use, but not the first line of defense for copyright litigation.  Hopefully your institution appreciates this critical distinction, and supports it.

Or there’s always law school….

 


[1] I am sorry if any of these fictional scenarios have triggered stressful memories.

[2] If there isn’t one, I pose an alternative in a few paragraphs, but in most instances, there is.

[3] See the helpful script in paragraph two to remind people you are not a lawyer.

[4] Some alert carriers right away, others are wary of having a high claim number.  Some carriers want to know the moment there is even HINT of a claim.  This is something the person responsible for insurance will know.

[5] I am writing this guidance to be shared with such stakeholders, if it can be helpful.

 

Tags: Copyright, Policy

Topic: Posting Patron Images on Facebook; When is an image release required? 8/22/2018
Are libraries legally required to obtain photo releases from all patrons (children's parents, ...
Posted: Wednesday, August 22, 2018 Permalink

MEMBER QUESTION

Are libraries legally required to obtain photo releases from all patrons (children's parents, teens, adults), even if we don't name those patrons before publishing photos to our social media accounts and/or press releases?

WNYLRC ATTORNEY'S RESPONSE

This is a huge question.  To answer it, let’s start with where the mania over image releases comes from.

New York Civil Rights Law, §50, states:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

In this age where every “click” and post is potentially monetized (and thus “advertising”), this rule is tough to advise on.  If I post a picture of my sister on Facebook, and her smiling face helps Facebook get attention for a sidebar advertisement, can she fulfill a threat made back in 1987 to get me in “sooooooooo much trouble?”  Not quite.  But if I create an ad for an event to be held at my law firm, and I use someone’s image without permission, that could be problematic.

The next layer of concern could come from Facebook itself.  As they say in their “Terms,” users may not:

do or share anything:

  • That violates these Terms, our Community Standards, and other terms and policies that apply to your use of Facebook.
  • That is unlawful, misleading, discriminatory or fraudulent.
  • That infringes or violates someone else's rights.

[emphasis added].

So, if my sister alleges that I have “violated her rights,” by posting her picture, am I risking my Facebook account, too?

A lot of this comes down to how Civil Rights Law §50 is being applied these days.  As of this writing, I did not find any case law where simply posting an image to Facebook violated §50.  Further, recent case law gives insight into what the courts will consider to be “advertising.”

“Under Court of Appeals precedent, the statute is to be narrowly construed and strictly limited to nonconsensual commercial appropriations of the name, portrait, or picture of a living person. A use for advertising purposes has been defined as a use in, or as part of, an advertisement or solicitation for patronage.” [1]

This sounds helpful, until you starting thinking that, in the world of Facebook, everything is only one degree from being an advertisement.  So how does a library post photos of patrons using their library without losing sleep at night?

The 2013 case of Leviston v. Jackson is instructive.  In Leviston, a woman sued the rapper 50 Cent for posting a sex tape (not made for commercial use) featuring her on his unmonetized web site.  During his testimony, 50 Cent stated that he posted the video to antagonize an opponent in a rap war.  During his testimony, 50 Cent admitted that rap wars are conducted in part to test the mettle of different rappers, and to bring attention to the combatants.  The judge, seizing on this admission that rap wars are in part for “attention” (of the commercial variety) refused to dismiss the Plaintiff’s claim.

So, if your public library is at war with the association library across town, or fighting a budget battle, and you would like to post pictures of patrons claiming “Our Books Our Bigger!” your library should get written image releases.   If, however, your not-for-profit library is simply publicizing “new hours!”, the person whose image you use would have a very weak claim (if they had a claim at all).

That said, in general, it is a good practice for libraries to get image releases whenever possible.  First, you never know when you might snap the perfect picture to illustrate why a new resources or a bigger budget would really help your mission.  Second, asking for permission to use a person’s image will emphasize your library’s respect for personal privacy and patron confidentiality.  And finally, by memorializing permission to use an image, you reinforce the patron’s connection to the library…and generate a great record for the archivist who will be trying to catalog your photos in 2118!

Thank you for your question.

 



[1] Leviston v. Jackson.

 

Tags: Policy, Privacy

Topic: Donation of photos for digital archive - 6/8/2018
Recently, our library has been given a collection of photographs that were previously on display i...
Posted: Friday, June 8, 2018 Permalink

MEMBER QUESTION

Recently, our library has been given a collection of photographs that were previously on display in a local business location. These are photos of the customers of the business, many are children. These photos span several decades and are important to many. 

We would like to digitize these photos and make them available via the internet because we believe these to be of sentimental, cultural, historical and academic value to our region and beyond.

The photos were given to our library by the business that had previously displayed them and also produced the photos. What are the issues of rights and permissions raised by making these images freely available online, especially given that many of those in the photos are children? Thanks for your help.

WNYLRC ATTORNEY'S RESPONSE

To answer the member’s questions, we must start with the fundamentals.

When accepting a donation of culturally significant photos, an archive should have a donor agreement or other documentation that addresses the following things:

Does the donor solely own the physical photos?

Is physical ownership being given to your institution?

Who authored the pictures?  If not a company, what is their name and birthdate?

Does the donor solely own the copyrights?

Is copyright ownership being given to your institution? If not, what permission comes with the physical donation?

May the receiving institution license use by others (a “transferable license”)?

Were the copyrights registered?

Are there any reservations or conditions on this gift?

If donated as part of a will, obtain a copy of the will.

What is the value of the gift? (for tax purposes, if the donor wants to claim a deduction)

Confirming the scope of the donation, the conditions, and value of the gift creates a firm basis for future decisions, including how to address the potential risks of posting pictures of minors.

It is also helpful to get as much additional information as you can at the time of the donation:

To the best of the donor’s ability, what is the date, place, and identity of those in the pictures?  What else of significance is being depicted?

What type of equipment was used to product the images?

Why were the images gathered?

Who collected the images?

Why is this collection significant; why should it be preserved and made available to the public?

Why does this collection fit into the mission of your institution?

Knowing as much as possible about the provenance and purpose of a collection makes it easier to access the protections built into the law for journalism and scholarship.  And with that background, it is easier to assess the risks when the collection involves human subjects.[1]

Those risks include:

Will this content be used by the institution in a way that violates New York’s bar on use of names and likenesses for commercial use? [2]

Are there any ethical considerations that bar including these images in the collection?

Is this depicting any personal health information?

Are there special sensitivities we must consider and plan for?[3]

Will the names of those depicted be included in the metadata of the digital archive?  If so, why is that necessary?

When it comes to minors (those under 18), additional risks are:

Will this reveal a minor’s youthful offender status?

Will this reveal participation in the social services system?

Does this depict an illegal act?

If the answer to any of the last eight questions is “yes,” a consultation with a lawyer, and perhaps an an image-by-image review, may be warranted.  But while that may time time and resources, it may be worth it, since there still may be a way to digitize the photos and make them available via the internet…especially if they have sentimental, cultural, historical and academic value to our region and beyond.

 


[1] At an academic institution, if the images depict human subjects (of any age) consult the Institutional Review Board (“IRB”).  Depending on how you design your project, it could be important.

[2] Here is the actual text of the law: “§  50.  Right  of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the  name,  portrait or  picture  of  any  living  person  without  having first obtained the written consent of such person, or if a minor of his or  her  parent  or guardian, is guilty of a misdemeanor.”

[3] Depictions of exploitation, enslavement, abuse, or images that could be considered an “illegal sex act” (as defined by §130 the penal law) for instance.  From the sound of it, that is not the case here, but at “Ask the Lawyer!” we try to be thorough.

Tags: Digital Access, Digitization and Copyright, Copyright, Donations

Topic: Copying Yearbooks - 5/25/2018
A member asked about a request for the library to provide copies of photos from yearbooks for a cl...
Posted: Friday, May 25, 2018 Permalink

MEMBER QUESTION

A member asked about a request for the library to provide copies of photos from yearbooks for a class reunion.

WNYLRC ATTORNEY'S RESPONSE

One of the reasons I enjoy doing “Ask the Lawyer,” is the diversity of questions, and the often esoteric subjects I get to research as a result.  This question is a prime example.

While the liability for copying copyright-protected yearbook photos is, in theory, the same as copying any other published, commercially-generated or amateur picture, I always like to check and see if the specific circumstances in the question have some directly on-point case law. So when this question came through the pipeline, I hit Lexis-Nexis® to search for cases of “yearbook infringement.”[1]

Well.  I found:

  • A first amendment case involving a high school senior suing to include a statement describing a state-sanctioned execution on her yearbook page[2];
  • A copyright case involving a person who laboriously compiled yearbook photos of famous graduates from a variety of New York City high schools, only to find his work replicated by another publisher[3]; and
  • A truly horrific case involving a prank, jail time, and a photo of a person’s genitalia making it into the yearbook[4].

What I didn’t find was a string of case law based on simple copying of yearbook photos for non-scholarly or non-journalistic reasons, like promoting reunions, which is the nuance posed in the member’s question.  But I suspect that is because when a claim based on such an action is threatened, if it has any teeth, it is quickly settled.  Insurance carriers do not like litigation.

So, when your library gets a request for a might-still-be-protected yearbook photo, does it mean the request must be denied?  No.  Remember, if the use is non-commercial, and the other criteria are met, libraries can make copies under Copyright Act Section 108.  Further, Under Section 107, patrons can make the copies themselves, and can claim fair use.  But like with all things copyright, the devil is in the details.  It all depends on the basis for the request, and the amount of content used.

Where must we draw the line?  Somewhere between these two examples:

Example #1: A patron has requested the library copy a yearbook pages featuring Timothy McVeigh for use in coverage related to the Oklahoma City bombing.  That person could get both a 108 copy, and a copy under fair use.  This is especially true if the image selected actually showed it was from the yearbook, and was included as part of an essay, book, or documentary exploring the roots and reasons for the actions of a domestic terrorist. 

Example #2: A patron has requested the library make copies of the individual photos of 100 less notorious graduates to promote Starpoint High School’s Class of ’86 reunion on Classmates.com.  That request would not have that same protection at Example #1.  If the original photographer or their heir could show it was an infringement, they could claim damages (even if the photo’s copyright wasn’t registered), and the library could find itself without a defense.

So how does a librarian deal with this type of request?  As always, help the patron get access to the information they need, but protect the library.  If the request is in person, once they have been given access to the book, your job is done (don’t help them with the copy machine).  If the request is remote or inter-library, and you know they plan a purely commercial use, you can’t make that copy.  This might be perceived as harsh—the requester is probably just a volunteer trying to organize a simple good time! –but you can let them know that the request they made exceeds your authority[5]

Bear in mind, it’s 2018. If they access or check out the yearbook and take pictures with their phone without your assistance, that is not something the library can control, nor be held responsible for. The patron themselves might have liability, but your institution will not…unless your library is part of the school organizing the reunion, in which case… seek back-up!

Please note: this highly restrictive answer has nothing to do with the fact that somewhere in the Town of New Hartford, NY, there is a picture of me in a Def Leppard t-shirt with 80’s hair.

 


[1] This is not a paid commercial endorsement of Lexis.  It’s just the service I use.  But for the record, I have preferred it since law school, where “Lexis or Westlaw?” is the equivalent of “Coke or Pepsi?”

[2] Stanton v. Brunswick School Dep’t, 577 F. Supp. 1560 (January 23, 1984). She won!

[3] Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309 (June 4, 1999).  He lost!  (Not enough original content in his work). 

[4] Granger v. Klein, 197 F. Supp. 2d 851 (March 29, 2002).  Josten’s got an early dismissal of most of the claims. 

[5] Unless you are a member of Congress and can introduce legislation to change the Copyright Act.

 

Tags: Copyright, Digital Access, Digitization and Copyright, Yearbooks, Photocopies

Topic: Inter-library Audio Files - 5/24/2018
More than once we have received requests to provide digital copies of audio files from institution...
Posted: Thursday, May 24, 2018 Permalink

MEMBER QUESTION

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue: 

  • What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
  • Does it matter if audio is provided via headphone or open speakers?
  • Does it matter if an entire recording is played vs. an excerpt?
  • Are excerpts of certain duration allowable regardless of securing permissions?
    If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
  • As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

WNYLRC ATTORNEY'S RESPONSE

This one is tricky.

It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing.  This is a place where libraries boldly go on a routine basis, but lawyers fear to tread.  But we’ll try and parse it out.

To do so, we need to remember some “Considerations”:

Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.

Consideration #2:  Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.

Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108.  What does that mean?  Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not. 

Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:

…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]

Which brings us to…

Consideration #5:  A library can make a partial or complete copy if it is a “fair use.”  Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act. 

Consideration #6:  An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).

Consideration #7:  None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.

 

Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.

Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?

Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition.  As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).

But that is a secondary consideration for the library who might be providing the copy.  Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate.  So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.

This is hard, because librarians are both helpful, and tend to be relentless gatherers of information.  If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided.  This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot. 

Question: Does it matter if audio is provided via headphone or open speakers?

Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use.  But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.

Question: Does it matter if an entire recording is played vs. an excerpt?

Answer: If the requesting institution is relying on a fair use defense, absolutely, yes.  The amount of the work used is one of the four factors.

Question: Are excerpts of certain duration allowable regardless of securing permissions?

Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met.  But don’t let that stop you from providing a 107 copy!  If the fair use factors are met, it is conceivable that a person could use the entire work.  There is no set formula; fair use can only be assessed on a work-by-work basis.

If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?

This is not a binary question, it is an algorithm.  Here we go:

  • The holding institution should try to ascertain if the work is still protected by copyright.  As the member points out, this depends on dates and publication status.  If it is still protected…
  • The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107. 
  • If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
  • If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
  • If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice.  This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis.  For the example provided, there is no clear answer.  Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met.  So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors.  This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).

Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.

For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request.  Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone.  Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.

 

Here is food for thought: forms should promote making a 108 copy whenever possible.  108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document.  “Fair use,” on the other hand, is often in the eye of the beholder.  Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other.  It’s a tough analysis that unfortunately inspires erring on the side of caution.  So use 108 whenever it can apply.

A lot of questions, a lot of answers, and a lot of food for thought.  This is a rapidly evolving area of law, so check back in on this issue in a year or so.  The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve. 

And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al.  (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!



[1] House Report 94-1476.

[2] The factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017).  In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.

[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)

 

Tags: Copyright, Fair Use, Laws, Music

Topic: Poetry on display - 5/23/2018
I am working with an artist on a future display at our library. He is a regionally known professio...
Posted: Wednesday, May 23, 2018 Permalink

MEMBER QUESTION

I am working with an artist on a future display at our library. He is a regionally known professional artist. He is working on an engraving that makes use of a short poem by a deceased, well-known poet. He has learned that the poem is still under copyright and that the poet’s estate is active, but believes that unless it gets renewed, the poem should be in the public domain by the end of the year. If the exhibition is to be before that time, should he apply for permission to use it? If so, is that likely to be expensive?

WNYLRC ATTORNEY'S RESPONSE

This is a great question, since it shows how libraries not only provide access to information, but serve as patrons for the arts.  This nurtures local culture, spurs community creativity, and brings special attention to a library.

As the member points out, though, this role also comes with its own set of legal issues, including copyright concerns.

“Ask the Lawyer” was created to provide practical guidance and tips to libraries, museums and archives on the front lines of culture.  So, while there are many excellent treatises out there on copyright, fair use, contributory infringement, estate law, and contract law—all of which are showcased in this question—rather than wax philosophical, this answer will try, above all, to be useful to a librarian as they work with their community to nurture new art. 

With that in mind, here is a checklist flowchart of “red flag” issues, and potential solutions, to help you find the smoothest legal road for bringing custom art to your library.

Bringing Custom Art to Your Library

Contract Development Flow Chart

 

Step 1: Establish the vision and shared goals for the projectWork with the artist[1] to develop a carefully description of the project.

  • What media is it in? 
  • What is the title?
  • Is the artist ready to provide contract assurances about copyright, image rights, or trademark?

NOTE:  In other words, is the artist considering any permission they might need, or fair use they need to make?  In this exercise, they should rely on their own lawyer (sometimes provided pro bono by an arts organization), and never on input from the library.

  • What is the location of the display?
  • Will the library promote the work through a special event?
  • Will there be special conditions to prevent wear and tear?
  • Are any library employees assisting with the production and/or installation?
  • Is this project wholly or partially funded by a grant?  If so, does the grant have any special requirements?
  • Confirm the artist’s name, address, and if relevant, get their 1099 form.
  • Every project is unique; what special considerations does this one have?

NOTE:  All discussions should make it clear that until a formal written agreement is reached, discussions are just speculative, and not a contract for services.

 

Step 2: Establish how it is being paid for

  • Make sure all the financial details are clear.
  • Who is paying for supplies?
  • Is the artist being compensated?
    • If so, how much?
    •  When are the payments to be?  Are they tied to project progress or completion?

NOTE:  if the artist is being paid (and they should be), or is selling anything based on the end result, and the materials are not becoming part of the library (like a mural or a custom Narnia-inspired wardrobe that is actually a built-in bookcase), the library should not purchase the materials…but the artist can factor the cost into the final price.[2]

 

Step 3: Establish ownership

This step controls a lot of the latter considerations.

  • Is the library to be a co-author or co-owner of the work?

NOTE:  If the answer is “yes,” a plan for jointly managing the asset should be developed.  Generally, to avoid this complication, you want the answer to be “no.”

  • Who will own the physical object?
  • Who will own the copyright(s)?
  • If the library won’t own the copyrights, what permission does it have to duplicate or use the work?  (examples include: put a copy on the website, make fund-raising t-shirts, display it in a window, digitization and inclusion in online archive, or any use the library wants).
  • Will the author be using an alternative form of copyright licensing (like Creative Commons) to ensure community access to the work?

 

Step 4: Establish clear boundaries

This can help avoid confusion and stress later.

  • Whose workspace is being used to create the work?
  • What support is the library providing during creation?

NOTE:  “Nothing except moral support” is a great answer.

  • Who is transporting the work to the library?
  • If it requires installation or hanging, who is doing that?
  • What are the mutually-agreed methods of promoting the work, and what methods (if any) are forbidden?  For example, some libraries might encourage promotion via Facebook, while others might regard that as less than desirable.

 

Step 5: Confirm critical responsibilities

  • When is the work to be completed by?
  • When is payment due?
  • Who is responsible for securing any necessary copyright permission or image rights?

NOTE:  Unless you are co-authors on an exciting joint venture with a very well-developed contract and express insurance provisions, clearance and permissions should never be done by your library.  Further, when you develop a final agreement for the work, it should contain a clause stating that the artist is the sole author of the work, the artist is responsible for obtaining necessary permissions, that all necessary permissions have been secured, and that the artist will hold harmless, indemnify, and defend the library (and its trustees, employees and volunteers) in the event a third party claims the work is infringing any copyright, trade mark, image right, or right to privacy.

  • Who is responsible for organizing any promotional events?
  • Who is responsible for damage to the work during display at the library?
  • Who is removing the work from the library when complete?

 

Step 6: Protect the library!

You can tell by the questions on the worksheet that my final guidance on is this: when developing a public art project, be picky about the details, and turn them into a good contract.

Because there are too many variables amongst the libraries (public libraries, college/university libraries, hospital and prison libraries, museums, private archives), I cannot offer a standard template for this.  A public library is in a different place than a library within a college or museum; they all live in different regulatory universes, have different vulnerabilities, and have different rules and obligations.  This is why simply “borrowing” a template from another institution is often a bad idea.

However, I can say that any good contract will address the above-raised issues, and if you have used this worksheet in advance, assembling such a contract will be easier.

 

Step 7: Promote Culture, Enjoy Art

I know: nothing kills inspiration faster than the word “indemnification.”  This worksheet brings up a lot of messy details that, if brought up at the wrong time, can hamper creativity. 

But I have found that addressing these details early actually helps a project move forward.  It gives the library and the artist clarity about their roles.  It gives the security of assurance about vital details.  Most importantly, by inspiring forethought about possible impediments, it makes challenging projects possible.

So revel in the details, make room on the walls, and let the art flow!



[1] You’ll see that throughout this checklist I also refer to the artist as the “author.”  The copyright law uses “author” as a catch-all term for the creator, whether they are a writer, photographer, sculptor, etc…

[2] I know, if the library can buy the materials, they’re tax free!  But both the state of NY and the IRS are pretty clear on this.

 

Tags: Copyright, Public Domain

Topic: The Library of Things (and Bikes) - 5/22/2018
We are planning on installing a bike rack for our community members. With it begs the question, sh...
Posted: Tuesday, May 22, 2018 Permalink

MEMBER QUESTION

We are planning on installing a bike rack for our community members. With it begs the question, should we also loan bicycles? Many libraries already do. Here is but one example: http://cpl.prl.ab.ca/about-us/policies/bike-borrowing-agreement. My question is, as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that? Please help me identify any worst case scenario possibilities that I should be prepared for.

WNYLRC ATTORNEY'S RESPONSE

From tools, to bikes, to digital printers, an increasing number of libraries are providing access to more than information. 

I imagine someone has named this phenomenon, but I got a J.D., not an MLS, so I couldn’t find its overall name.  Therefore, I call it “The Library of Things.”  [1]

Joining “The Library of Things,” signals a sea change in the identity of a library.  It expands its lending model beyond information (books, media, data) to capability (printers, kayaks, cameras). It converts a community asset from a place of intellectual access to a source of physical action and production

This combined role  is re-framing community awareness of libraries.  But whether it’s called a “makerspace,” or a “tool library” or simply a “3D printer,” these resources are challenging traditional library laws and ethics governing access, liability, and patron privacy.[2]  The member’s question is a perfect example of the complications that brings.

What complications?  The “Library of Things” is not simply about accessing assets, but using them, applying them, and sometimes, riding them.  Most library law (parts of the education law, CPLR 4509, a robust array of civil rights jurisprudence, and a body of case law regarding library operations) is built around that premise that a library’s mission to provide access to information must be safeguarded at all costs.  But that jurisprudence is largely silent on the issues posed by using equipment to take action or produce something.  That function, while important, is not enshrined in the law.  Prediction: the Library of Things will soon start testing the conventions of libraries’ legal status quo. 

But let’s get down to the brass tacks (or the greased chains).  What about the bikes?

Regarding the member’s precise question (“…as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that?”), the answer is “no.”  The liability for lending equipment is a varied as the disclaimers and warrantees that equipment comes with, and in general, a simple policy and waiver are not the only things needed to anticipate risk and reduce liability.  So how does a library do it?

First (and I cannot say this enough): no library should contemplate the loan of functional equipment without thoroughly considering the risks and conditions of that equipment’s use.  The member’s question says it all: Please help me identify any worst case scenario possibilities that I should be prepared for.

When it comes to lending bikes, here an initial laundry list or “worst case scenario” thinking:

  • Will the library require helmets?
  • Will the library then provide helmets?
  • Can minors under 18 borrow them?
  • Can children under 14 borrow them?
  • Will the library provide information about the rules of the road?
  • Will the library require a safety demo before the first ride?
  • Has the library picked a demonstrably safe model of bike?  Is that model safe for all sizes?
  • Does it have all the required reflectors and bell?
  • Who will verify ridable condition before lending?
  • Who will deal with flats, rusty chains, and brakes?
  • How will the library respond to notice of an injury?
  • How will the library deter theft?
  • Who will own the bikes?
  • Who is providing insurance for every worst-case scenario?

Don’t worry…there are many ways to address the risks these questions highlight.  One solution, which can greatly ease the burden on a library, is to have the liability assumed (and insurance provided) by a third party through a rental contract.  With that approach, rather than accession the bikes, the library picks up the fee (rather like paying for access to a database), and the patrons, following an established policy, check the bikes out on their card.  In such an arrangement, the library’s contract, the underlying policies, and the agreement signed by the patron, could be drafted to promote safety and to shift the liabilities away from the library…an arrangement that must be confirmed by the right combination of contract provisions and proof of insurance.[3]

Second: no library should contemplate the loan of functional equipment without thoroughly considering the unique nature of their library.  Is the library a public institution?  Is it affiliated with a larger organization?  What are the limits of its insurance?[4]  Are there physical hazards near it that warrant enhanced care?  If your public library is at the top of a steep hill with a railroad crossing at the bottom, it should not use the same bike loan policy as the college library in the flat town with no CXS line.

Third (but in many ways, first): Is the contemplated asset critical to the mission of the library?  Is fulfilling the patron need for this equipment consistent with the library’s strategic plan and goals?  If the answers are “yes,” then addressing the first two questions should be easier, since clearly the identified risks and complications will be worth it.  If bikes with baskets help fulfill the mission to deliver books to the senior center, then bikes with baskets it is.

And finally, there are ancillary considerations.  Is the loan of equipment a “circulation record” subject to privacy laws?  Is the service as accessible as possible per ADA?  Do you need to follow a procurement policy when seeking a third-party bike provider or a purchase source? 

When developing a bike loan program, it’s essential to consider:

  • New York Vehicle and Traffic Law (“VTL”) 1236 requires that a bike have a bell (and expressly NOT a siren or whistle);
  • If ridden from dusk to dawn, a bike must have reflectors meeting the specs in 16 CFR 1512.16 (by law, all new bikes in the U.S.A. meet this standard);
  • Children under 14 must wear a helmet (NYS VTL 1238) (your insurance carrier might require ALL riders to wear a helmet);
  • It is a violation-level offense for a person over 18 to leave the scene of a bike crash causing MINOR injury to another without calling law enforcement (VTL 1240);
  • It is a B misdemeanor for a person over 18 to leave the scene of a bike crash causing MAJOR injury to another without calling law enforcement (VTL 1241);
  • Your insurance carrier will probably want to know about any injuries;
  • VTL 374 bars riding while listening to more than one earphone (no books on tape while riding); 
  • VTL 1235 bars carrying something that prevents keeping at least one arm on the handlebars (limit how many books your patrons are carrying home!).

That’s a lot, but there are resources to help you.  The library’s insurance carrier should be consulted at the outset.  The NY Department of Transportation maintains a list of current bike laws.  There are an array of groups that offer free safety training, and many civic organizations offer free helmets.  If possible, a third party vendor is the way to go, since it can help limit the library’s liability. Liability waivers should be custom-drafted to fit your library and the precise arrangements it has made for the bikes, but drafting your waiver should be the last step, after you’ve made your decisions about safety and conditions.

With a little coordination, you can address all the bells (but by law, leave off the whistles).

There’s a lot to wade through, but one thing is clear: libraries are evolving.  This means that with a few fits and starts, the law will evolve with them.  So once your organization decides to join the Library of Things, know the assets, know your library, stick to your mission, and roll with it. 

With the right planning, it’s as easy as riding a—

(Couldn’t resist).

 



[1] I invented this term as I wrote.  During editing, my husband (who does have a library degree) checked “Library of Things,” and found that it’s been in use for quite a while.  So I got to think I was clever for about 2 hours.

[2] I’m not a historian, either, but I really do think this change is significant.  Think about it: Ben Franklin, who founded this continent’s first formal lending library, was a printer.  But did that library give members free access to a printing press?  Or a candle mold? Lending things has not been baked into the model. 

[3] These documents should be reviewed by the library’s lawyer.  It doesn’t hurt to have them reviewed by the library’s liability insurance carrier, too.

[4] For instance, Camrose, AB, the library in the member’s question, is in Canada, a country with a markedly different approach to risk and health issues.

 

 

Tags: Policy

Topic: Creating a poetry anthology - 4/28/2018
Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed t...
Posted: Saturday, April 28, 2018 Permalink

MEMBER QUESTION

Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed to an entire grade level of students to be used for annotation and instruction? [It’s been suggested] that "since they're all available on the internet" they should be able to printed, collected, bound, and sold to students. A few things that I am unclear on are:
1. Does it make a difference that they are British poets whose work is in the public domain (as I understand, 70 years after death of author)
2. Does it make a difference that the collections are intended to be SOLD to students?
3. If they are, in fact, available through sites such as Project Gutenberg and 
https://www.whitemarketpodcast.co.uk/blog/2015/10/08/public-domain-poems-for-national-poetry-day/ are they okay to copy, bind, and sell?

 

WNYLRC ATTORNEY'S RESPONSE

I wandered lonely as a cloud…wondering “is there a way to create our own custom array of poems by Wordsworth, Keats, and Burns?”

The answer is: Yes.  If a poem was published before 1923, or meets certain other criteria, it is in the public domain.  Being in the “public domain” means it is free from copyright protection, and that any would-be publisher may generate, duplicate, and sell their own version of it—with or without  new illustrations, new original commentary, and other non-infringing works.

When taking on such a project, the critical factor for worry-free re-use is publication before 1923.  For such poems, status in the public domain is assured.

For poems published after 1923, the analysis is a bit trickier.  There is no hard-and-fast rule; the place of publication, the manner of claiming copyright protection, and the life of the author are all relevant.  Cornell maintains an excellent chart that breaks down the factors to consider when assessing if a work is in the public domain.[1]

Public domain status, or permission from the copyright owner, is something a would-be publisher should verify on their own.  It should not be assumed, even if the poem is free for download on the internet.  Even Project Gutenberg puts terms and restrictions on its content (see the Project Gutenberg License), and does not guarantee that a work is in the public domain (check out PG’s statement on this issue).

Once a would-be publisher has a method for confirming that the poems are in the public domain, it does not matter how many poems they use.  When working with public domain material, there is no limit on how many works can be assembled, duplicated, and distributed. 

That said, there are a few serious caveats. 

First, a publisher must truly verify that each and every poem was published (not written, but published) before 1923, or that any post-1923 publication meets the factors on the chart. 

Second, a publisher must make sure they are not infringing someone else’s updated version of a public domain poem.  All of Chaucer’s works may be in the public domain, but a new translation, or a copy with new cartoon illustrations, is not.  To avoid any charge of copying, it would be best to re-type the poems.  Do not copy a recently annotated version.  Do not scan a newly illustrated version.  Do not simply cut-and-paste.  For the final compilation[2] to be owned and then sold by the new publisher, the typing should be done by an employee, as part of their work.

Third (but very important!), if preparing copies of public domain materials for sale, take care that trademarks are not a part of the newly compiled content.  As an example…a publisher can re-print a pre-1923 poem about Coca-Cola, but can’t use the Coca-Cola logo to sell the copies (unless its for commentary/criticism, but that’s a fair use question…).  Make sure the school has the rights to any images that are used.

Overall: The member’s question models the sense of caution when using previously published material.  But with the above caveats in mind, a new publisher can relax, share some poetry, and say:

For oft, when on my couch I lie

In vacant or in pensive mood,

Poems flash upon that inward eye

Which is the bliss of solitude;

And then my heart with pleasure fills,

Thinking I will have no legal bills.



[1] While rare, some copyright owners simply announce that their work is free to use, or free to use with very limited restrictions.  Such an announcement should be verified and documented before being relied on.

 

[2] If the end product is simply a gathering of public domain material, it might not have sufficient originality to be subject to copyright.  But if new illustrations or instructional materials are included, it might.

 

Tags: Copyright, Public Domain

Topic: Educational films without a license - 4/24/2018
A couple committees at the college my library is at want to present copyrighted films in the theat...
Posted: Tuesday, April 24, 2018 Permalink

MEMBER QUESTION

A couple committees at the college my library is at want to present copyrighted films in the theatre as part of an educational film series. They are under the impression that as long as there is an "educational component" to the screening that it falls under fair use.
 

The showings would not be part of a course, although there are brief lectures by Faculty introducing films and related concepts. The screenings are open to the public. No admission is charged. 


Does this fall under fair use? 

WNYLRC ATTORNEY'S RESPONSE

The short answer is: no, this scenario is not a “fair use.”

But that’s not the end! “Fair use”—which is found in Section 107 of the Copyright Act—is not the only exception to copyright infringement.

There is another way.  Section 110 of the Copyright Act provides:

[T]he following are not infringements of copyright:

(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made[.] [emphasis added].[1]

 

In the cold, scary, expensive world of copyright infringement, section 110 is breath of fresh air.  Unlike section 107, which creates a four-factor “fair use” formula so esoteric, you can consult three lawyers and get six opinions, Section 110’s exceptions are well-defined and clear. [2]

So, can a gathering of instructors and students in a theater on a college campus meet these clear 110 requirements?  Yes! 

But.

The problem is, as used in 110, the term “students” is not broad enough to apply to the member’s precise scenario.  While the 110 term “instructors” includes guest lecturers (if their instructional activities remain confined to the class location and syllabus), the 110 term “pupils” is generally regarded as meaning only enrolled members of a class[3]  In addition, it is best if the syllabus for the course, whether for credit or a certificate, supports a conclusion that the viewing context really is a class—not recreation (even if it is enlightening recreation) masquerading as academia.  110 is a powerful exception to infringement, but it has its limits.

107 and 110 exceptions to infringement can sometimes get conflated.  Here are some examples of how they do (or do not) apply, using one of my new favorite movies:

1.  “Black Panther” uncut and shown on campus as part of an open-to-all, educational film series about would not be allowed under either fair use or 110.  Any such showing must be licensed.  

2.  “Black Panther” partially evoked in very small, carefully-chosen selections for an open campus forum on “Women in Major Motion Picture Fight Scenes” could be allowed under “fair use,” but film stills and excerpts must be limited to only what is needed to make a point.

And finally…

3. “Black Panther” shown in its entirety to students enrolled in a “Comics and Society” class would be allowed under 17 U.S.C. 110 (1)…so long as the movie genuinely contributes to the substance of the course, is shown only to enrolled students, and the copy they watch is not pirated. 

What’s the take-away?  Educators should apply “fair use” when needed, but remember that section 110(1) creates exceptions to infringement, too.  It’s no vibranium[4], but is a powerful part of an educator’s arsenal.


[1] Care must be taken to ensure there is no re-transmission of the content.  Another section of 110 does allow for limited re-transmission for online learning, but to qualify, the institution must adhere to all TEACH Act requirements.

[2] There are more than this, and of course, they all come with rules.  Read the statute before relying on 110 to protect you from infringement.

[3] See House Report 94-1476

[4] Special rare metal in “Black Panther;” also, what Captain America’s shield is made from.

 

Tags: Copyright, Fair Use

Topic: Defamation and Adding Defamatory Content to Collections - 3/12/2018
Can a library be sued for defamation for adding defamatory content to its collection?   ...
Posted: Tuesday, March 13, 2018 Permalink

MEMBER QUESTION

Can a library be sued for defamation for adding defamatory content to its collection?

 

WNYLRC ATTORNEY'S RESPONSE

As I work on “Ask the Lawyer,” one of the core concepts I keep in mind is a library’s unbiased commitment to provide information.  As set out in the ALA Policy Manual’s “Library Bill of Rights”:

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

This commitment is backed up by section B.2.1.1 of the ALA’s Manual:

[I]t is the responsibility of every library to have a clearly defined written policy for collection development that includes a procedure for review of challenged resources.

Every library professional I have ever met takes these commitments seriously—even when adhering to them makes things complicated or messy. But what if the “origin, background, or views” of materials provided represent an alleged attack on another?  Could the library face liability?

Let’s take a hypothetical: a new documentary called “Burgerworldwide,” alleges that the (fictional[1]) franchise “Burgerworld,” is not only making people morbidly obese, but is engaged in an international conspiracy to fix meat prices.  The local library, which has a robust collection of health-related documentaries, adds a copy of “Burgerworldwide” to its DVD collection.  The local Burgerworld franchisee, who is not only a prominent local citizen, but very active in local politics (and friends with several members of the library’s board), takes offense.  Could the library face liability?

In New York, wrongly accusing a person (or company) of a crime they did not commit can be grounds for a defamation claim.  However, for a library to be found liable for such a claim it would have to repeat, independently and of its own volition, the erroneous accusation.  "[U]nder New York law, 'all who take part in the procurement, composition and publication of a libel are responsible in law and equally so.'" [2]

Simply owning and lending a movie (or book) does not meet this test.  I found no case law showing that a library acting simply as the owner and distributor/lender of information, has ever been found liable for defamation in New York. 

Given that, liability for defamation is only actionable if the library (whether or not it adds the documentary to its catalog), promoted  or discussed the movie in a way that independently and knowingly renewed a false accusation of the alleged criminal activity.  To go back to our “Burgerworld” example: if library staff made a short recording of themselves eating Burgerworld products while saying “Our local franchise is criminally fixing prices…we can prove it!”[3] and then put the recording on Facebook , that could serve as the a basis for a claim[4] (note: having a basis to make a claim is not the same as winning the claim).

In my hypothetical, a more likely scenario than a threat of a law suit would be attempted pressure on library’s fiduciaries (trustees, board members, ED) by the local franchise owner to have the library remove the movie from its catalog.  This is why training for trustees, and referring to the established guidance for library leaders, is critical.  By consistently following its clearly defined written policies for collection development—including its procedure for review of challenged resources—a library can protect itself when acquiring and promoting access to potentially inflammatory material. 

Isn’t it nice when a commitment to library values also protects a function critical to a democratic society?

 


[1] Yes, this title was inspired by Weird Al’s video, “Fat,” as well as the place of employment of “Beavis & Butthead.” I am a fan. 

[2] Treppel, 2005 U.S. Dist. LEXIS 18511, 2005 WL 2086339, at *3 (quoting Brown v. Mack, 185 Misc. 368, 56 N.Y.S.2d 910, 916 (N.Y. Sup. Ct., Kings Cnty. 1945)); see also Conte v. Newsday, Inc., 703 F. Supp. 2d 126, 147 n.19 (E.D.N.Y. 2010) (same). 

 

[3] I know none of you would do this, and I trust that your accession policies contemplate the responsible sourcing of non-fiction material.

 

[4] Remember, any time your institution is threatened with legal action (even if groundless), before making a response, it is best to alert your attorney, alert your fiduciaries, and just as critically, alert your insurance carrier.

 

 

Tags: Defamation

Topic: Re-printing instructional materials for classroom use - 3/9/2018
A teacher would like to reprint a student workbook we can no longer find in print. We tried to get...
Posted: Friday, March 9, 2018 Permalink

MEMBER QUESTION

A teacher would like to reprint a student workbook we can no longer find in print. We tried to get permission from the company that bought the publisher out, but they said they couldn’t help. At this point, can we prove that we have made a good faith effort to receive permission?

WNYLRC ATTORNEY'S RESPONSE

It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies. 

Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.

And yet, class must go on.  We tried to ask…now can we just make those copies?

Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement.   Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use). 

Of course, there are some exceptions to this rule.  If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated.  And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use).  But copies for students, whether or not they are sold, do not fall into these categories.

The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner.  This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources. 

And sometimes, even after a herculean effort, the answer cannot be found.  But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.

Tags: Copyright, Textbooks, Photocopies

Topic: Digitizing dramatic and musical works - 3/1/2018
When it comes to digitizing large theater and music program collections, it is well-established th...
Posted: Thursday, March 1, 2018 Permalink

MEMBER QUESTION

When it comes to digitizing large theater and music program collections, it is well-established that a library can digitize anything before 1923, and that if there are no copyright notices on them, can digitize anything before 1978.  But if there are multiple "copyrightable" elements in the works (advertisements, photos, actor biographies, illustrations, etc.) is it okay to digitize them? What is the risk in digitizing a program when there is a copyright notice on one or more element in the program, but not all of it? If a theater or musical society is defunct, is it okay to digitize the programs associated with it beyond 1978 or when it may have a copyright notice?

 

WNYLRC ATTORNEY'S RESPONSE

This is a complex issue (although not nearly as complex as assessing a library wing full of dramatic and musical works).  To unpack this, I will take advantage of a form suggested by the topic: the opera libretto.

[Cue overture…]

ALTO:  Can works with no copyright notice before 1978 be safely digitized?

BASSO:  Beware, if they were previously unpublished or the trademark is still monetized.

ALTO: What about text works with multiple works inside them?

BASSO:  A compilation notice may protect the whole system.

ALTO: What about a work included in an unregistered collection?

BASSO:  Beware!  That work may have a separate protection.

ALTO:  If a theatre organization has folded, can their work be duplicated?

BASSO:  The copyright could have been transferred, so…it’s complicated.

SOPRANO:  So you’re saying…[crescendo] you DON’T KNOWWWWWW?

BASSO: ….no. 

[triangle]

Okay, enough of that.

The bottom line:  There is no bright-line rule I can provide to give assurances for works that are post-1923 (and, for unpublished works like journals or private recordings, items authored prior to that date).  Between image rights, trademark, privacy, and overlapping copyright terms, projects like the one described in the question can bring an array of legal considerations.  Adding music to the equation—which is exempted from §108, the law that allows certain copying at libraries—only heightens the concerns.

The key to designing a digitization project that can survive this type of risk assessment resides in the question: why does the collection, and the particular items in it, need to be digitized in the first place?

If the answer is, “for preservation,” then documenting, on a work-by-work basis, that either there are no protected elements in the work, and that all 108 factors have been met, is the key (NOTE: this would likely involve restricting some of the collection to on-site access only).

If the answer is, “for ADA adaptability,” then documenting, on a work-by-work basis, that the digitization was only for purposes of making an accommodation is the key.

If the answer is, “so the whole world has easy access to high-resolution, searchable, meta-tagged copies of the material,” then verifying, on a work-by-work basis, that no valid copyright or other bar to duplication and online publication is the key.  Materials still under copyright could not be available for download, but could be listed as on-site and available for copying if allowed per §108. 

If the answer is, “so the whole world has internet access to low-resolution, water-marked, searchable, thoughtfully meta-tagged copies of representational selections of each title (whether under copyright, or not), presenting the bare minimum of what’s needed for researchers to determine what we have on site and available for §108 copying,” then carefully following the four “fair use” factors is the key.

If the answer is, “so the whole world has internet access to our carefully curated, scholarship-oriented, presented-with-commentary-and-criticism, non-market-disrupting, selective array of material carefully culled to represent the breath and scholarly value of our larger collection of theatrical and musical materials available for §108 copying” then designing an end product that meets the four “fair use” factors is the key.

I realize this is a chicken-and-egg reply: if you can’t clear answers on what you can do with the material, how can you envision what to do with it?  My reply to that is: trust that your mission to provide access to information is supported by the law.  Think about the materials, develop a theme as to why access to them is important, acknowledge any potential boundaries, and a legal solution can be found.  Bring in a lawyer to advise on specifics when needed,[1] like a decision to invoke “fair use,” to set up clear parameters for copyright determinations, or how to best document use of §108. 

Since access is your mission, copyright should only inform, not deter it



[1]Sometimes, you just need a lawyer.  This RAQ can cover a lot of helpful general ground, but some things—like designing a particular fair use, or crafting the legal parameters for a specific project—can only be done through confidential legal advice based on viewing the precise materials and circumstances.  

 

Tags: Copyright, Digitization and Copyright, Music

Topic: Media transfer/Image rights 1/31/2018
We are in the process of transferring old VHS tapes to DVD and then to a secure internet cloud.&nb...
Posted: Wednesday, January 31, 2018 Permalink

MEMBER QUESTION

We are in the process of transferring old VHS tapes to DVD and then to a secure internet cloud. 
The tapes are ours ranging from 1988- 2001, we taped specific classes with numerous instructors who were aware of the taping process. Since the tapes belong to us are there any copyright issues in reproducing and offering access to for a fee through our Lakeside Learning Center, or reproducing as a DVD and selling? 
We also have very old cassette tapes of a similar nature. We possess them and instructors being taped were fully aware. 
We would like to offer these as an MP3 for paid access.

WNYLRC ATTORNEY'S RESPONSE

Putting the tapes on the cloud: it is great that educational institutions are saving and promoting their accumulated knowledge this way.  But aside from the copyright issues the member asks about (which we’ll get to at the bottom of this reply), the transfer and publication of legacy instructional material[1] can bring some additional legal considerations.

Here are some “red flags” for converting video of your past lectures for digital re-sale.

Image rights

In New York, the commercial use (including sales of instructional DVDs, as mentioned in the question) of a person’s image, likeness, and name must be with written permission.  Of course, for employees whose routine duties include being recorded (like newscasters), that consent is addressed at the start of the job.  But for instructors who may have been aware they were being taped in 1988, but weren’t aware that the tape could be acquired by paid viewers later via the Internet, there could be some risk that a past instructor might object to being included.

Further, in the event the instructor was an employee covered by a collective bargaining agreement or other employment contract at the time of filming, they could have some rights you need to consider.  A quick check with a Human Resources department should be able to confirm if any past or current agreement poses any complications.

And finally, in the event the instructor who was filmed was not an employee, but under a speaker agreement--perhaps speaking for a small fee—an institution must exercise caution, since awareness of being filmed does not constitute permission to mass-produce the product and sell it in the marketplace.  If possible, sending a note to the former speaker, thanking them for their past participation and offering a small fee in exchange for their signature on written permission for the new use, is best.

The bottom line: there are a lot of possible permutations to the “image use” issue. To avoid them, whenever possible, verify that your institution has written, signed permission to use a person’s image before selling any newly converted recordings.

Accuracy and Reliability Disclaimer

In the event any of the instructional materials relate to a trade, profession, or other topic governed by prevailing standards, law, or regulations, a disclaimer that carefully clarifies that the content was generated in 1988 (or whatever year applies), might be wise. 

Of course, if the content is opinion-based, that is not an issue.  But if the person is relating an objective best practice, regulation, or law, making sure a viewer is warned that the information could be out of date is critical.

Here is an example: If the speaker was commenting generally on the value of meditation in daily life, that is an opinion, and needs no warning.  If, however, the speaker is commenting on Education law Section 3029 (“Silent Meditation in Public  Schools”) then making sure the law as described in the legacy video is current, and/or adding a disclaimer reminding the viewer that the content dates from an earlier time, might be appropriate.
 
Trademark

It’s a long shot for the scenario posed by the member, but in the event there is any trademarked material (for instance, a set of instructional booklets with a prominent logo) be wary before digitizing and charging for access.  The incidental use of another entity’s trademark could create an alleged infringement.  Fortunately, as can be seen in a lot of reality TV, this can be avoided by simply blurring the mark!

And finally….Copyright

The member is correct; if the institution (through its employees) is the entity that created the recording, and there is no written agreement to the contrary, the institution owns the copyright, and can duplicate, sell, and create derivative works based on the content. 

However, care should be taken to verify that no independently owned content is contained within the video (a person reading a poem, for instance).  While under many circumstances such inclusion can qualify as a “Fair Use,” that is not always the case (for more on this caveat, see the “Recently Asked Question” posted on Saturday, January 27, 2018).



[1] Please note: this issue is different from digitization projects by libraries who own, but did not produce, the content!

 

Tags: Copyright, Digitization and Copyright, VHS

Topic: Audiobooks at the library - 1/23/2018
Amazon.com sells audiobooks. One of the formats is an MP3 CD. The image of an example box says the...
Posted: Tuesday, January 23, 2018 Permalink

MEMBER QUESTION

Amazon.com sells audiobooks. One of the formats is an MP3 CD. The image of an example box says the MP3 is transferable. 

My question is, if I bought one of these audiobook MP3 CDs for the library, would it be copyright infringement for me to transfer the audiobook MP3? What if I wanted to transfer it to a google drive so that it could be shared amongst a teacher and her students? Would that be copyright infringement?

Just wondering on the dynamics. 

WNYLRC ATTORNEY'S RESPONSE

The answer to all of the questions is: Yes, buying an MP3 audiobook on CD, copying it, and putting the copy on a drive accessible to others, unless the CD’s license authorizes it, would be copyright infringement[1].  

An audiobook’s license is what that defines the permission a user has to copy the file.  A typical license for an audiobook contains something like this:

When you purchase [Vendor] Content, [Vendor] grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such [Vendor] Content to your computer and/or other device(s) solely for your personal, non-commercial use. You agree to not otherwise copy, reproduce, distribute or use the [Vendor] Content other than as expressly set forth herein. You will not sell, transfer, lease, modify, distribute or publicly perform the [Vendor] Content in any manner and you will not exploit it commercially. ”[2]

Some licenses do allow transfer of audio books onto multiple devices, and some may even provide for one person to transfer the MP3 to another; the permutations are only limited by the soft and hardware containing the copies, and the business plans of the publisher.

Which brings me back to the member’s question.  In the scenario presented, it is not quite clear if “transferable” (as used on the cover of a CD) means transferable between devices, or between owners; only by checking the actual licensing information on the product would you be able to determine that.  

It is rare for the owner of an audiobook to simply offer limitless transferability, but the fine print, not the cover, is where you’ll find out for sure.  And that is the dynamics (a good word for something as in flux and digital rights management)!



[1] Unless the recording is in the public domain, the conversion is for ADA accessibility purposes, if the use is a “Fair Use,” or some of the other very narrow exemptions apply.  But we’ll just focus on conventional, copyright-protected audiobooks that a publisher is selling for money.

[2] The mystery is killing you, right? This is an excerpt from the Audible license.

 

Tags: Copyright, E-Books and Audiobooks

Topic: Public Domain and performance of plays - 1/22/2018
Is public domain based on the copyright of the work OR is it based on when the author died OR perh...
Posted: Monday, January 22, 2018 Permalink

MEMBER QUESTION

Is public domain based on the copyright of the work OR is it based on when the author died OR perhaps it is based on something else? 

Basically, how do you know if something is in the public domain? 

Thank you!

WNYLRC ATTORNEY'S RESPONSE

The Public Domain…intellectual property’s frontier.   These are the adventures of those working with no copyright.  Their mission: to use pre-existing content, to explore not being sued for infringement, to boldly go where no legal protection has gone before..!

 

[Insert inspiring theme music here!]

 

Sigh.  If only this question was as simple as putting on a spandex unitard and exploring the galaxy.  Unfortunately, it isn’t, and there is no one hard and fast rule for assessing if something is in the PD (Public Domain), and thus available for use without licensing, permission, or any concern about copyright.

 

So what do you do if you want to work with material you think might be in the PD?  You have to analyze it.

 

A work has several ways of getting into the PD[1]:

 

1.  It lacks sufficient original authorship to have ever qualified for copyright protection.  Example: a simple, non-descriptive list of characters in a play.

 

2.  It qualified for copyright but was never protected.  Example: a play published in the US in 1957 without a copyright notice.

 

3.  It was once protected, but the protection expired.  Example: a play published in 1988 without a copyright notice, and without subsequent registration within 5 years.

 

All three of these can be tough to assess. There is, however, a great chart maintained by Cornell, that enables some determination related to #2 and #3.

 

https://copyright.cornell.edu/publicdomain

Do you need to assess if something is in the Public Domain?  Check out the chart.  With the right information about a work (the author/owner, date of publication, and circumstances of publication) it can be used to determine if a work is in the Public Domain.  But take care!  When working with the chart, make sure you verify every relevant variable.  Have someone knowledgeable, or an attorney, double-check your conclusion.

 

Once you’ve done that, you can voyage to the undiscovered territory, secure in the knowledge that no one can sue you for infringement (based on copyright).



[1] “The public domain” should not be confused with “copyleft” practices such as Creative Commons licenses, or “Open Source” agreements that authorize use under very light restrictions; such licensing is still based on the underlying property having a protectable copyright. 

 

Tags: Copyright, Public Domain

Year

0

2016 4

2017 24

2018 29

2019 42

2020 51

Topics

501c3 2

Academic Libraries 2

Accessibility 4

ADA 7

Association Libraries 1

Branding and Trademarks 1

Broadcasting 1

Budget 1

Circular 21 1

Contact tracing 1

CONTU 2

Copyright 69

COVID-19 35

CPLR 4509 3

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 9

Digital Exhibits 1

Digitization and Copyright 10

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 33

Employee Rights 7

Ethics 3

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 1

Fundraising 1

Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 18

LibGuides 1

Library Buildings 1

Library Programming and Events 7

Licensing 3

Local Organizations 1

Management 16

Meeting Room Policy 3

Microfilm 1

Movies 5

Municipal Libraries 4

Music 11

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 1

Oral Histories 1

Overdrive 1

Ownership 1

Parodies 1

Personnel Records 1

Photocopies 15

Policy 28

Preservation 2

Privacy 10

Property 3

PTO, Vacation, and Leave 1

Public Access 1

Public Domain 7

Public Health 1

Public Libraries 4

Public Officers Law 1

Public Records 2

Quarantine Leave 1

Reopening policies 3

Retention 3

Retirement 1

Ripping/burning 1

Safety 2

Salary 2

School Ballots 1

School Libraries 5

Section 108 2

Section 110 2

Section 1201 1

Security Breach 2

Sexual Harassment 2

SHIELD Act 2

Smoking or Vaping 2

Social Media 4

SORA 1

Story time 3

Streaming 12

SUNY 1

Swank Movie Licensing 3

Taxes 4

Teachers Pay Teachers 1

Telehealth 1

Textbooks 3

Trustees 3

Umbrella Licensing 2

VHS 4

Voting 1

W3W 1

WAI 1

Yearbooks 2

Zoom 1

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.