RAQs: Recently Asked Questions

Topic: Copyright Liability for Library Programs - 3/6/2019
A community member is interested in gathering at the library for a non-staged, dramatic reading of...
Posted: Wednesday, March 6, 2019 Permalink

MEMBER QUESTION

A community member is interested in gathering at the library for a non-staged, dramatic reading of a play published in the UK in 2016. The idea is offered as a potential library program, though it could also be viewed as a separate community meeting without library sponsorship. It is my rough understanding that, regardless of whether an audience is brought out for the performance or not, regardless of who is 'sponsoring' it, this would be in violation of the creator's (who is still alive) copyright claim to the work. Further, that the library would most likely be the liable party.

Am I right?

WNYLRC ATTORNEY'S RESPONSE

This question has two parts: 1) liability for copyright infringement based on a live reading (without staging) of a dramatic work; and 2) liability for events at library facilities.

Let’s tackle part 1 first. 

Section 110 of the Copyright Act sets out a number of exceptions for educational and charitable use of copyrighted works.[1]  Unfortunately, “dramatic works” (plays) are largely excluded from those exceptions.  So while Section 110 is generous (for instance, there is a total exemption from liability for performance of non-dramatical musical works at horticultural fairs!)[2], “performance” of dramatic works (even without staging) is not as excused as other types of use.  

The other exception that could apply to the member’s question is of course “fair use.”  I won’t take up too much of this “Ask the Lawyer” to discuss that option, since the event described here does not sound like it would meet the criteria. [3]

For this reason, any library or venue asked or planning to host a reading of a dramatic work—even without staging it, even without charging admission—should be very cautious.  Unless there is a confirmed exemption under 110 (which would be for classroom use, or for a performance for people with visual impairments), or a documented “fair use” under 107,  proper licensing should be obtained.

And now for part 2. 

Most libraries have some form of policy, and maybe a “facility use contract,” allowing groups or individuals to use their space.  Some charge a small rental fee, others do not.  Some have express restrictions on use by businesses or political groups,[4] others do not.

What’s important to the member’s question is that any use of library facilities should be governed by clear, uniformly applied, mutually-understood terms that:

  • ensure ease of distinguishing official library events from those simply using the library;
  • require any outside group to expressly assent to following library rules and procedures;
  • protect the library from any third-party claims based on the group’s use of the premises.

When it comes to copyright, this last part is essential, since the copyright law allows for “vicarious” liability that can include “innocent” (meaning, they didn’t know about it, or didn’t instigate it) infringers. 

This is what the last Congressional committee amending the Copyright Law has to say about “vicarious liability” for performances:

Vicarious Liability for Infringing Performances.

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra leader. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

As a not-for-profit institution, a library may have some more defenses than the average night club owner, but there is still a threat of liability. 

So how do venues reduce the risks posed by “vicarious” liability? Often, they ask the main performer, or the entity renting the facility, to “indemnify” the venue for any liability related to the performance.  To ensure they are actually protected, they also demand a certain amount and type of insurance, and require that the venue be a “named insured.” [5]  Later, if they are sued for an infringing performance, the venue will invoke the indemnity, and be defended by and have their damages paid by the renter or performer. 

So, to recap, the following factors are potentially relevant to both parts of the member’s question:

  • This particular use of a copyrighted work does not seem to fall under the exceptions of Copyright Law 110;
  • A reading of a dramatic work could be a “fair use” under Copyright Law 107, but that conclusion should be carefully documented, and again, does not seem to fit the described situation;
  • A library should have a policy and contract that enables the clear distinction between library and non-library events;
  • A library should have a “facility use” contract that protects it from any risks of allowing others to use its facility, including performance-related liabilities;
  • A library should have insurance coverage that takes into consideration use of its facility by others, including use for performances;
  • For certain high-risk uses (if allowed) a library can require an indemnification and insurance;
  • For certain high-risk uses, a library can simply decide the event is too risky.

This assessment of risks and ways to mitigate them is called “risk management,” and the member’s question is a great example of how to start the process.  So, what was that question again?

…regardless of whether an audience is brought out for the performance or not, regardless of who is 'sponsoring' it, this would be in violation of the creator's (who is still alive) copyright claim to the work. Further, that the library would most likely be the liable party.

Am I right?

Except for would changing “the liable party” to “a liable party”: yes, the member is correct…there is a risk.  How can this assessed risk be managed? One of four ways:

  • Have the group obtain written permission from the rights holder (for a reading at that precise location);
  • Locate a 110 or 107 exception;
  • Require an indemnification and proof of insurance from the group; or
  • Make a risk-management decision to not host the event.

Thank you for your careful question!

Exeunt lawyer, stage left.



[1] For a thorough discussion on that, I recommend the Congressional “Notes,” to section 110 of the Copyright Act, found at https://www.law.cornell.edu/uscode/text/17/110.  These are exceptions education and information management professionals should know.

[2] See Section 110(6) of the Copyright Act.  NOTE: The exemption extends only to the governmental body or nonprofit organization sponsoring the fair…the on-site concessionaires do not benefit from the exemption.  Not fair.

[3] That said, it is possible that a live reading of a dramatic work could be a “fair use.”  For instance, if a group wanted to use excerpts from six plays to illustrate varying depictions of a certain archetypes in drama—something that requires a partial performance of each work to make its point—that could be a “fair use” requiring no permission.  But such a use would need to be more than a simple reading of the play, and the overall performance would need to be carefully assessed to show it met the four “fair use” factors.

[4] That’s a whole other column!

[5] For those of you out there who have booked a convention at a hotel or conference center, this might sound familiar (and tedious) to you.  But this type of protection allows business to get done.

 

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