RAQs: Recently Asked Questions

Topic: Using music videos for projects - 3/5/2020
An internationally known band released various music videos for the purpose of a contest they were...
Posted: Thursday, March 5, 2020 Permalink

MEMBER QUESTION

An internationally known band released various music videos for the purpose of a contest they were holding. Fans were asked to create a new video using the clips provided. One of our professors downloaded and saved the music videos and would like to share them with his students so they can use them for an editing project. He would like to post the copied files in his password protected class management system (Black Board.) However, we would also like his students to be able to share their projects either in an eportfolio or online.


My initial reaction is that he should get permission from the copyright holder / publisher for permission even though the band released the content for a contest. I see many danger zones.

WNYLRC ATTORNEY'S RESPONSE

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be donedon’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be donedon’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).



[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here [INSERT PERMALINK].

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

Tags: Copyright, Derivative Works, Fair Use, Music

Topic: Does repurposing a book affect copyright? - 4/5/2019
Our library is always seeking ways to promote literacy, exercise, and park visits with community p...
Posted: Friday, April 5, 2019 Permalink

MEMBER QUESTION

Our library is always seeking ways to promote literacy, exercise, and park visits with community partners. One proposal we received was to take some books apart, laminate the separate pages, and mount them on display posts throughout a park, creating a moving, learning experience. 

I have a copyright concern. Can we “dismember” the books and laminate the pages and still respect the books’ copyright?

 

WNYLRC ATTORNEY'S RESPONSE

A “Path Through Learning!”  This sounds like a really cool idea. 

The member is right, though: to put this cool idea into effect as described, a library would need the permission of the copyright holder.

It’s hard to believe, but liability is just a rip and a lamination away.

Why is that? 

Although the “first sale” doctrine allows the purchaser of a book to resell and display the book—and even to make creative book arrangements in display cases and front windows--it is not a defense to cutting images from the book and re-mounting or laminating them. 

This is because courts have found that re-mounting or laminating covers or pages torn from a magazine or book creates a “derivative work” that is an infringement of copyright. [1]

“Derivative works,” are works that incorporate, “recast, transform, or adapt” part or all of a “pre-existing work,” without meeting the element of a “fair use” defense, or transforming what they’ve borrowed to the point where the original can’t be discerned.

Of course, an essential element of a derivative work is the “pre-existing work…” meaning, the work in its recognizable and copyright-protected form.  If I pulped my comic book collection and made a piñata out of it, that would not be a derivative work[2].  But sequels, adaptations, companion materials, and, yes, laminations, can run afoul of this right held by a copyright holder.

How do sellers of mounted, and perhaps laminated baseball cards do what they do?  Since nothing has been ripped or separated, there is insufficient “transformation” to make it a derivative work.[3]

So where does that leave the “Path Through Learning” concept?  Although it would have an educational purpose, based on the case law I found, a copyright owner could have a viable claim for an unauthorized “derivative work” being used to illustrate the path.  Further, unless there was some intrinsic commentary or criticism of the works selected, a fair use defense would be weak to non-existent. So as proposed, it is risky indeed, and the member is right to be concerned.

The good news is that I have two solutions.

First, based on the case law, protecting (via lamination, display box, treasure chest, etc.) and displaying entire copies of the books, with the pages open to a certain spot, could be an allowable display.  Just make sure they aren’t being marked or altered.

Second (and probably best): ask for permission.  The “Path Through Learning”[4] is a charming idea. I bet many authors and publishers would be delighted to give permission.  After all, you’re promoting their book!  Simply reach out, describe the project, and ask the rights holder if you can create the separately laminated pages for it.  It can’t hurt to ask, and they might say yes.  Of course, when they do, get the permission confirmed in writing.

Thank you for this interesting question.

 



[1] Rosebud Entertainment, LLC v. Prof’l Laminating LLC, (U.S. District Court for the District of Maryland, Norther Division, 958 F. Supp. 2d 600 (magazines), and Mirage Editions, Inc. v. Albuquerque A.R.T. Co. (books).

[2] I winced just typing that!  I love my comic book collection.

[3] Allison v. Vintage Sports Plaques, 136 F. 3d 1443 (11th Circuit, 1998)

[4] I am sure the member has come up with a better name for this.

Tags: Copyright, First Sale Doctrine, Derivative Works, Photocopies

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

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

I wish you all good reading.

 


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

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

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

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

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

[6] Law linked here.

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

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.