RAQs: Recently Asked Questions

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

MEMBER QUESTION

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

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

WNYLRC ATTORNEY'S RESPONSE

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

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

And it’s the law.  

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

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

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

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

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

2.  Write your own story.

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

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

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

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

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

And finally…

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

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

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

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

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

 


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

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

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

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

Topic: 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: Library's Facebook Page versus Staff Member's Facebook Page - 10/11/2017
We are struggling with a freedom of expression issue here at our library. When a staff member post...
Posted: Wednesday, October 11, 2017 Permalink

MEMBER QUESTION

We are struggling with a freedom of expression issue here at our library. When a staff member posts on his/her personal Facebook page something to do with the library, whether positive, negative, or neutral, what rights does the Library have, if any? We need to be able to differentiate the "official" library news, which gets posted by an administrator, from the library news that get posted/shared by a staff member on a personal Facebook account. Are there any legal issues surrounding this situation that we should be aware of as we begin to create our Public Relations policies?

WNYLRC ATTORNEY'S RESPONSE

The lawyer answers…

This is an area that library leadership has to be very careful about. While the laws, regulations, and policies governing library employees vary (based on the type of the library, and the type of institution the library/archive might be part of), there is a growing body of case law ruling that employers may not discipline—or chill—employees’ use of social networking to comment about their work experience.

As but one example, a recent National Relations Board (NLRB) decision1 barred a company from using the following employee handbook provisions:

  • Prohibiting the posting of “embarrassing, insulting, demeaning or damaging information” about the employer, its products, customers or employees.

  • Barring discussion of all information gathered in conversations, emails, and meetings as “confidential and proprietary.”

  • Prohibiting employees from referencing or citing employer’s members, employees or vendors in social networking without their express consent.

  • Maintaining a rule in a “Social Networking Guideline” that prohibits the use of the employer’s name, logos or trademark without the employer’s consent.

Although the case cited is from a union environment, the NLRB has claimed jurisdiction for non-union workplaces where federal grant dollars fund operations2. And of course, municipal-owned libraries, who might not be subject to NLRB jurisdiction, have to worry about First Amendment concerns—a different but not less critical priority. This well-developed case-law means I can give a very brief, decisive reply to this question:

Policies related to employees’ personal social networking should be finalized with the input of legal counsel, who will help you consider the goals of the policy, to comply with the law. Once developed, such policies should be routinely assessed by your institution’s attorney.

That said, there are obviously many good reasons for a library to have a strong, distinct, and official presence on social networks—and the good news is that this can be accomplished by an approach that is more affirmative than proscriptive. The legal/operational tools of a strong social media presence are:

  • Well-established library trademarks (name and logo);

  • A domain name that matches the trademark name, if possible;

  • Consistent use of those marks for social media sites/posts;

  • An “official voice” (tone, style) for posts and content;

  • Selecting and updating the utility used (FB page, Twitter, etc.) to make sure the settings support the tone you want;

  • A consistent approach to hosting (or not allowing) community dialogue;

  • Well-established parameters, consistent with the library’s mission, for how and why the page is operated;

  • A person who has routine maintenance of the social media resources written into their job description or volunteer letter3 (and, if possible, at least one back-up person);

  • A strong internal policy, well-communicated to employees, that ties this all together. This policy should not reference personal social media.

By cultivating a strong social media presence, ancillary content by employees and volunteers, on their own personal pages, will be made less confusing. This is a tactic worth considering, because as shown above, restricting employees’ ability to discuss work via social media is fraught with legal risk.

The foresight and caution showed by this question is very wise, indeed!


1 NLRB Cases 16–CA–107721, 16–CA–120055, and 16–CA–120910 (July 15, 2016)

2 Hispanics United of Buffalo, Inc. and Carlos Ortiz. Case 03–CA–027872 (December 14, 2012). This case, a seminal decision in this line of case law, shows how these issues arise in day-to-day operations. It is written in plain language and is very instructive on this topic. The board decision can be found here.

 

3 If a volunteer does this, checking with your insurance carrier to make sure they are covered for the activity is a smart thing to do!

 

Tags: Social Media, Management

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

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2016 4

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2018 29

2019 42

2020 51

Topics

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Academic Libraries 2

Accessibility 4

ADA 7

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Copyright 69

COVID-19 35

CPLR 4509 3

Crafting 1

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Discrimination 1

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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

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Fair Use 29

Fan Fiction 1

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Management 16

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Overdrive 1

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Photocopies 15

Policy 28

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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.