I've seen libraries take pictures of book covers and promote them on their library social media page, and was wondering if the same policy holds for movies. Can we take a picture of the front covers our new DVDs and promote them on Facebook? Or is it preferred that patrons browse our new DVDs in the library and/or on our library catalog?
Even though we purchased a movie license, I do know that due to copyright laws, we are not allowed to promote on social media any movies that we are showing at the library. Patrons are asked to call us and inquire what movie we are showing. Thanks for the help!
There are a lot of legal technicalities hidden in this question, but before we get to them, here is my overall advice: The more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions.
For example: If a library takes a picture of a new DVD, with only the cover content in the photo, and posts it to social media, that could potentially trigger some type of copyright/trademark concern. But if that same library takes a picture of their librarian holding that same DVD while giving a thumbs-up ("This new movie is librarian-approved!") that concern is greatly reduced, since the proprietary work is only part of the message.
This same guidance applies for book covers, new games, and other media packaging. Since copyright and/or trademark can both be invoked to protect any of that content (although just how protected the content is will vary from item to item), displaying it on social media as part of your library's overall personality and outreach is much better than using a photo or scan of the book/cover on its own. When you don't have permission, use of a proprietary image as part of a related but larger social media message ("We have this great book!") is generally a safer approach to image use.
Now, at this point I must note: the "image use" in this question is different from using cover content (let's call them "thumbnails," for nostalgia's sake) supplied by providers like Overdrive for your library's online catalog. Use of thumbnail content in your catalog (and thus, generally, on your library's website) is likely restricted in the license from the provider, but supplied with the understanding that the thumbnails will be viewed via your library's website as part of the service.
Now, as to announcing movie nights...this question gave me a double-take, because neither copyright nor trademark, in and of themselves, bar listing the bald fact that your library is hosting a (licensed) movie night, and the title of the movie—whether via a poster, or via social media.
But since I have never known a librarian to submit a baseless question to this service, I dug a bit more, and found this statement in the Swank guidance for libraries using their "single event' license:
"If the public library’s social media accounts are set to private, the title may be used. If the library’s social media accounts are not set to private, it is recommended the title not be included. The movie event may be promoted on the social media pages with a link to the title on the library’s website."
So to be clear: copyright doesn't forbid promoting the movie, but restrictions on promotion could be a requirement of the license (the contract allowing your library to show the movie), or (as the case here) a "recommendation" of the licensor, likely at the request of the trademark holder. This is one of the more bizarre "recommendations" I have run into in the contract-analysis business, and I thank the member for sending it along!
And that's it. Again, the take-away from this answer is: the more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions as a component of that larger messaging. Along with being a type of risk management, this will also lend itself to your library having better, richer, and more interesting social media, so it's a win-win; sometimes the law and quality control go hand-in-hand.
And now, to go watch the new [TITLE OF MOVIE REDACTED] with my family.
 For purposes of this question, I do not consider your library's website "social media," since in many ways these days the website is simply the virtual part of the library. "Social media," to me, are third-party contractors: the usual and growing array, like FB, IG, TT, Twitter, etc.
 Using movies stills and original posters can pose a concern, but here, we're just talking about announcing the title.
 You can find it, too: https://www.swank.com/public-libraries/faq/#afterpurchase6
 That said: "it is recommended" is not the hallmark of contractually enforceable language. My guess is that this is something Swank told its content providers it would do, but everyone realized that as a hard requirement, it is pretty ridiculous ("We're showing a movie! Can't say the title!") and could cost them business. I can see why content providers would ask for it, though, and I bet it shows up in other licenses. If you have a license with a requirement like this, please send us a copy; I collect contract artifacts like this.
 Because it will make it much easier to claim fair use, and also make it much less likely that your library will be accused of infringement in the first place.
I've had an interesting question posed to me by two Social Studies teachers and... I have a feeling this may be a more pervasive issue.
A teacher checked out a :50 video (DVD) from the school library he wants to show to his class. Typically, while the students are watching the video, they will answer/respond to a worksheet the teacher has provided to them. How does the teacher show this video to his Remote-Only students at home?
There are a few ways a teacher may be able to show the remote-only students a specific video.
First: check the license to the video. It may expressly authorize that type of use.
If that doesn’t give assurance...
Second: check to see if the school is set up to follow the TEACH Act.
The TEACH Act is Section 110(2) of the Copyright Act. It allows for the transmission of certain copyright-protected material by accredited educational institutions under certain conditions, if the school is set up to follow the law.
For the viewing of videos, those "conditions" are:
If these conditions are met, the remote learning can commence!
The TEACH Act was handy before COVID, but these days, it is invaluable. This is why every school district, accredited private school, college, and university should have a "TEACH Act Policy"—so learning can continue as strongly as possible.
"Set up" means that the school: institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members about copyright and copyright protection, and applies technological measures that reasonably prevent the transmitted material from being duplicated/published. For the full recital of what must be done, see the law at https://www.law.cornell.edu/uscode/text/17/110.
The question, as a follow up to the Oct 31, 2019 post about showing movies and Swank.
Regarding Netflix, this is there term of use:
Netflix Service 4.2. The Netflix service and any content viewed through our service are for your personal and non-commercial use only and may not be shared with individuals beyond your household. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable right to access the Netflix service and view Netflix content through the service. Except for the foregoing, no right, title or interest shall be transferred to you. You agree not to use the service for public performances.
My question- does Swank’s license allow for this OR does Netflix’s license stand even though rights are secured by the movie studio.
I must be very clear: Unless I obtained a written representation signed by an officer of Netflix, I would never advise a corporate client to rely on the Swank umbrella license to show a video from a “personal and non-commercial” Netflix account.
Why is this? Because the one license does not trump the other.
To illustrate this concern, here is the best analogy of I could come up with: if it’s bow hunting season and I get a bow hunting license, I can bow hunt. I can commune with nature, test my skills, and if I’m lucky, come home that night and make some venison stew.
But if, while eating my dinner, the police stop by to investigate an allegation that I shoplifted the bow and arrows, they won’t say: “Oh, you have a license? Sorry, back to your stew.”
The same principle applies here. A Swank license can definitely allow your institution to watch a covered movie you lawfully obtain. But the Netflix license quoted by the member does not allow the movie to be shown beyond the account holder’s “household.” And the language makes it clear the account is for “non-commercial” uses. In other words: a copy used to further institutional operations was not lawfully obtained.
Unfortunately, Swank is pretty coy about this concern. Here is the language from the link provided by the member:
Where can I acquire movies after we receive our license?
You can use movies that are secured from any legal source (DVDs, digital copies or any other legal format). While we cannot speak for other companies, we recommend checking the terms and conditions of any streaming service used to confirm that they do not prohibit public performance. [emphasis added]
Now, in copyright law, everything is up for debate. If I put this topic on the table at a gathering of three copyright attorneys, I guarantee you’d get six answers (maybe seven). And of course, attorneys love it when their clients test the boundaries of the law: it gives us a chance to engage in high-stakes, nuanced, and learnedly arguments—and sometimes, it comes with a paycheck.
But one thing most attorneys in the business world respect is risk. There is a risk that Netflix could view the use as unauthorized. And I stated above, unless there is rock-solid assurance from the vendor (in this case, Netflix) that it is authorized, use of a personal Netflix account for an institutional purpose is just too risky.
How does this play out in the real world? Large services like Netflix look for “teachable moments,” to bring lawsuits. They send out private investigators, track IP addresses, and look for evidence of broad misuse. Once they gather the evidence, they select a victim, and sue (although in the case of Neflix, Section 7 of the License allows for them to resolve the matter via private arbitration).
What is the protection against that? An institutional policy that bars use of personal accounts for professional purposes.
There are some approaches to this educational dilemma that do pass my “sniff test.” Some colleges encourage students to get Netflix accounts if they are taking a film class, so they can watch movies at home. Near as I can see, unless Netflix starts putting some new “not for class” terms in its license, this is okay (but does not extend to the entire class using one student’s account…unless they are all in the same household).
Similarly, if a history teacher wants to use their Netflix account to view “13,” at home, even if it is to prepare for a lecture or a discussion of the film in class the next day, that strikes me as a “personal” use. But if their institution asked them to do it, or they wanted to use their account to watch the movie in class, that would not be allowed.
I wish I could give the member clever answer informed by Fair Use, or coming up with some special rule that applies to libraries. But licensing is a creature of contract, and if you accept the terms, they will generally govern.
So, just like this member, read those licenses carefully!
 I know it sounds rather cold, but in liability-land, schools are “corporations.”
 You should see the analogies I left on the cutting-room floor! My favorite involved a building permit and pirated architectural plans.
 I do not bow hunt, but if I hunted at all, that is how I’d do it. I have a friend who bow hunts; she is like Wonder Woman, but with white hair a much more practical gear.
 As of December 18, 2019 (I took a screen shot). We’ll see if it’s there in a year or so. I’m such a media influencer, maybe once Swank hears about me calling them “coy,” they’ll switch it up!
 As discussed in other columns, Netflix does have an “educational use” license for some documentaries. Their instructions to see if a movie is available that way is here: https://help.netflix.com/en/node/57695
 ASCAP, BMI, RIAA, MPAA, and DirectTV were the pioneers of this tactic.
 I would like to thank Jim Belair (who gave me permission to credit him here) at Monroe 2 Orleans BOCES for a great discussion on the implications of this issue for New York public schools. Most institutions don’t invest in DVD players anymore, which means that streaming is the way the access content. But if the streaming service isn’t in the name of school (just the teacher or the administrator) use by the school risks violating their license.
Teachers at our school like to use pictures from movies to decorate their doors. What rules apply to this?
At "Ask the Lawyer," we are frequently amazed at the diversity of the copyright questions we get. When we started the service, we thought we'd often refer people back to answers that had already been covered.
But librarians always find a way to switch things up!
What are the new variables this time?
"Doors" and "images from movies."
We'll start with "images from movies."
Under the Copyright Act, the owner of the copyright controls the right to display still images from movies. So the member is right to flag this as a possible concern.
But we can potentially rest easy on that point, because educators have some special rights under the Copyright Act--if the material was legally obtained, and if the material is used as part of the curriculum--and "displaying" images from motion pictures is one of them.
Or, as Congress puts it in Section 110(a) the Copyright Act:
[P]erformance or display of [one legally obtained] 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[is an exception to infringement].
So, under 110, here is the analysis to answer the member's question:
If the answer to both is "yes," then the answer is: decorate the heck out of that door.
Having said that, I appreciate that the two factors set out above are not always easy to answer. Frustratingly, there is no one-size-fits-all definition of either "teaching activities" or "lawful copies." That said, using some grown-up versions of famous characters from my childhood, here are some examples of the "wrong" and the "right" way.
The wrong way to use 110
Teacher Mr. Goofus does a Google image search for "Elsa," captures a bunch of screenshots from "Frozen," prints out color copies. He puts them on the outside of the classroom door, together with a sign saying "Let it go, only a few weeks until Winter Break!"
The right way to use 110
Teacher Mr. Gallant uses the copy of the DVD owned by the school library to create a screenshot of the scene where Elsa is discovered to have magical powers. He puts it on the inside of the classroom door, along with a sign saying: "This month we'll be reading the Scarlett Letter and discussing depictions of overcoming social alienation in popular culture."
What do these examples show? The more integrated with the course work, and the more legitimate the copy, the more the teacher (and the school) can claim protection under 110. (NOTE: Mr. Gallant could claim protection under "Fair Use.")
Which brings me back to the other variable: the door. For a 110(a) analysis, what side of the door the movie picture is on is (potentially) relevant, since if the content is on the outside of the door, it's slightly harder to claim the material is part of "face-to-face teaching." That said, if the link to an actual lesson plan is clearly perceptible (like in the "Gallant" example), I think it could work.
And there you have it.
I have noticed this "door decoration" phenomenon when picking my kids up from school. My poor children never have a moment that is Harry Potter® or Elsa®-free.
But I get it, images from movies are a way to brighten the environment and get kids engaged. Fortunately for the teachers of this world, if you follow its formula, Section 110(a) makes it okay. This is good, since after taking a quick look, we could not find a non-paywall source for such images.
But make sure the use is part of the curriculum! Thanks for a thoughtful question.
 Before committing to this example, I checked to see if 1) "Goofus and Gallant" was still "a thing;" and 2) if modern norms of child psychology had decided they were based on any harmful tropes. Wow, was a fun ten-minute tangent. As the children's librarians out there already no doubt know, G&G is very much still "a thing." Further, while a ton of fascinating stuff has been written about their antics (showcased in over a billion issues of "Highlights") they are still alive and illustrating extremes of youthful behavior--having outlived such contemporaries as lead paint, seatbeltless cars, and jarts. Go, G&G.
 This is an appropriate assignment for fourth grade, right?
 Which the "Goofus" example would not qualify for.
 Am I just jealous? I tried to remember what was decorating the doors of my elementary school in New Hartford, NY, circa 1982. I am pretty sure the only decor was the sad remains of the people in "Oregon Trail." Speaking of harmful tropes…
What qualifies as a legally owned copy of a movie? I understand that the physical copy, when loaned is transferrable and can be covered with an Umbrella License from SWANK or other companies. I believe that streaming services do not qualify as an owned copy as they have licensing that does not work with the Umbrella License. What about movie rentals from iTunes? Does that licensing also exclude itself from the umbrella license? I guess my question is, does only a physical copy of the item work with the Umbrella License provided?
Schools, libraries, prisons, museums, student clubs, companies…from time to time, these places just want to hand out snacks, and let people watch a movie.
The problem is, the simple act of gathering people to watch a movie is governed by an intricate web of copyright law, and the legal filaments of that web change from place to place.
To help institutions navigate this variability, movie studios and agencies (including Swank, the agency mentioned in the question) offer suites of “licensing” options. Swank’s website even features helpful copyright guides to help customers assess their needs and obligations, so they can select the right license—including an array of broad permissions called an “umbrella license.”
Under an “umbrella license,” movies that the agency has the rights to may be shown by the licensee (under an array of qualifying circumstances). And as the member writes, this can include showing movies from a borrowed physical copy (like a DVD), even if the copy isn’t supplied by the service.
How does that work? Here’s an example:
Let’s say my daughter’s kindergarten teacher wants to show the class “My Neighbor Totoro.” The teacher stops at a local library to obtain a copy on DVD, which bears the warning “licensed for home viewing only.”
Next, the teacher checks in with the school and confirms that the school is licensed to show “Totoro” under the school’s umbrella license. My daughter’s class can now watch a masterpiece of Japanese animation, without fear of copyright infringement.
Now let’s switch the scenario up: the teacher wants to stream the movie from his iTunes. The school still has that same umbrella license. Can the teacher use his personal account to show the movie?
That said, depending on how broad it is, the school could try and claim the “umbrella license” to get the school out from under a claim of direct infringement. But that could leave the teacher twisting in the wind! - Not very good for union relations.
To switch the scenario one last time: let’s say the school has an “umbrella license” from an agency like Swank, and also subscribes to a streaming movie service (Amazon Prime). Before a class views a movie via the Prime stream, the school would need to review both licenses to ensure the Prime license was consistent with, or trumped by, the “umbrella.”
This issue here isn’t really about streaming v. hard copies. It’s about licenses. In our first scenario, the “generic” license on a hard copy is (potentially) trumped by the “umbrella license” held by the school. In the second scenario, the personal license held by the teacher could be violated when he uses his account for more than “personal” use—even though the school is licensed to show the movie. And in the third scenario: well, it depends.
The key to this question is license alignment. If an institution has a license to view a movie, and gets the copy it views from another source, there must be no contradictory provisions in the stack of licenses—or, the umbrella license must clearly trump the previous license. This is true whether the institution is using a hard copy or a streaming copy, and regardless of who the physical copy belongs to.
The member’s question alerts us to this complexity, and the member is right to approach this issue with caution.
So. What constitutes “a legally owned copy?” I wish I had a simple and rock-solid answer, but these days, that can be a tough call. Reading the fine print on licenses might not be fun, but it is an essential part of answering this type of question, and it needs to be done on a case-by-case basis. This is why careful planning during procurement, and attention to details when negotiating licenses and services, is critical.
Thanks for a question that pulls the focus to this issue.
 “Helpful” in the sense that they inform potential customers as to why they need Swank’s service! But the “help” is based on reality.
 This is a fantasy example. But they did show her “The Little Mermaid.” Sigh.
 As seen on December 9, 2019 at https://www.apple.com/legal/internet-services/itunes/us/terms.html. That said, each work can have its own terms, so always read carefully.
 But not, perhaps, “contributory infringement” (assisting in infringement by another).
 This answer is esoteric enough, so we won’t dive into the further implications of streaming movies under the TEACH Act…but commentary on that can be found in earlier answers.
 Always check you umbrella license!
 Okay, I’ll admit it: I find reading the fine print fun.
Our school district offers a Community Education program that offers courses on a broad range of topics to the community. In some of these Community Education classes the instructor may want to show a DVD movie or stream a movie that is related to the course. Would this violate fair use and copyright? How would this also change the outcome if our school district has a subscription with SWANK Movie Licensing?
Flying at 10,000 feet, the answer to the first question is: if the class in in person (not online), AND the institution is non-profit, AND the only viewers are the instructor and the students enrolled in the class, AND the viewing is in the classroom or academic facilities, AND the content is part of the curriculum, AND the copy was legally obtained…then the showing is allowed under Section 110(1) of the Copyright Act (“110”).
The answer to the second question is: if use of the precise copy is controlled by a SWANK license, then despite authorization under 110, the showing must be consistent with the terms of that license. For that matter, the use of any other content service for viewing movies (Netflix, YouTube, etc.) must also conform to the terms of the service’s license.
Swooping a bit lower to the ground (but not into the weeds): exercising rights under 110 is why it is important that: 1) class syllabi show the relationship of materials to the goals of a course, 2) institutions maintain lists of enrolled students, and 3) institutions have designated spaces for instructional activities.
This is why reading the fine print on content licenses is important, since contractual obligations can over-ride rights otherwise granted by law.
How does a school librarian help instructors stay within the bounds of the law or the license? A good rule for educational institutions is to have clear and pro-active policies and outreach for instructors who need to show movies. In this world where education gets hit with new laws, regulations, and policies every year, while clear policies are important, a simple message to instructors: “Need to show a movie in class? Ask us how!” is a great place to start.
 Here is the full text of sub-section (1) of 17 U.S. Code Section 110: [Notwithstanding the provisions of section 106, the following are not infringements of copyright:] “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….”
 What’s a sign that your institution’s policy is sufficiently “clear and pro-active?” Instructors not using their own personal Netflix accounts is Exhibit #1.
We have several VHS tapes that our anthropology professors use in the classroom. Our campus will be phasing out VHS as the players break down. We would like to send these to a vendor to create DVDs or digital files. We feel we have done the due diligence searching for a replacement. In most academic libraries media materials are purchased for distribution to the classroom for educational use. Making a copy would be of little benefit if use is not allowed in classroom, face to face instruction.
WNYLRC ATTORNEY’S RESPONSE
From: Stephanie C. Adams
Date: June 27, 2017
This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library.
The inquiring library set out the other 108(c) factors: the obsolescence of VHS (manufacture stopped in 2016), the lack of commercially available copies, and the published nature of the work. So as you say, what’s left to determine is: Does the “premises” of a library in an educational institution include the whole campus?
“Premises” is not defined in the Copyright Code, nor is it commented on in the lawmaking notes (vis-à-vis this question). I found no case law directly on point. So we’ll go to the lawyer’s last resort: common sense.
Section 108’s bar on digitized preservation copies leaving the premises of the library is very rigid, and it is likely the boundaries of your library are, too. If the library has a finite space that is reported in things like strategic plans, accreditation reports, and campus maps, then the “premises” would most likely be deemed to end at the door, not flow throughout the campus. A quick search on this issue show this is the emerging consensus. So yes, the DVD’s you make as a result of this format shift are, at first, trapped in your library.
This creates a ridiculous conundrum: you need to shift the format so the educational material may be accessed, now that the format is no longer supported. But in transferring the information to a digital format, you are shackling it to the premises. How can you provide access?
 The Section 110 exemption for “classroom use,” requires that the viewed copy be “lawfully made,” and your digital copy, to be “lawfully made,” must stay on site. So I do not feel safe advising you to use that route…although it is uncharted territory.
You have two options:
First, it is important to remember that the shift of format does not necessarily change the license your institution purchased when it first acquired the VHS tapes. This is a point strongly emphasized in both 108, and the lawmaker notes accompanying it. If your institution had a license to use the copies for classroom room, directly from the owner/publisher, that license might survive the shift. That could be determined from the purchase records or license text on the video itself.
Second, the Association of Research Libraries’ “Code of Best Practices in Fair Use for Academic and Research Libraries” was drafted, in part, to address this situation (see page 18). In the Code, the ARL posits that when a preservation copy is made, further access can be granted under Fair Use. This does come with limits however: “off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.” Further, the Code states that preservation and Fair Use copies should not be accessed simultaneously, and technology controls should be used both label the copy as required by 108, and to restrict further duplication.
This Fair Use solution to your problem has been adopted into the published policies of many institutions (here are a few examples). As there is no case law on point, I cannot say it is a slam-dunk defense, but I can say that if you adopt your own policy for carefully following this emerging standard practice, and then document that you follow it as you embark on this journey to ensure continued access to educational material you rightfully purchased, you will be in good company if content owners decide to sue for infringement, and recent case law about fair use will likely weigh in your favor.
There is a good deal of writing and advocacy on this issue, and hopefully in another few years, I will have a more definitive answer to give you!
The question relates to showing a performance video to a sanctioned college club. I understand that as long as the college's library owns the DVD or streaming rights, the movie can be shown in its entirety for educational purposes in a classroom to registered members of the institution. Does the same hold true for showing the same movie to clubs on campus as long as the event is restricted to college members? This second question is related to the movie presentation but is concerned with publicity. Can the cover image be copied and inserted into the event posters and on the college's website? The web announcement would be removed immediately after the event.
As you say, a college can show a movie they own, without further licensing, so long as:
This is a broad exemption, but it absolutely does not apply to non-instructional, non-classroom showing of movies by student clubs. Such a showing would require express permission via license.
Of course, if a student club has an academic focus (for instance, Spanish Club) and the film is to be part of an academic experience (for instance, watching the movie in Spanish, to enhance learning), in an academic setting (class room, with a qualified academic instructor) one could argue that the required elements are still met. But the educational purpose must be bona fide…no watching “Deadpool” for entertainment and then having a half-hearted, academically disconnected discussion on modern comic book tropes. And of course under no circumstances should money be charged.
The second question is very simple: the cover images of most commercial films are subject to copyright. Because of that, and because there is no exemption allowing them to be duplicated, unless permission is obtained, the college is well-advised not to allow copies to be displayed to promote the event, and especially should not allow that image to be published on the college website.
Keeping it off the website is critical. Even smaller rights holders police the internet for images they own, and insurance companies, facing mandatory statutory damages and attorneys’ fees, will quickly settle claims…something that will eventually lead to higher insurance premiums for your institution.
The best way to promote the licensed showing is to either use the approved promotional material that comes with the license, or generate a version that does not infringe on the content of the original (or the film).
We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium? Does going through a good-faith effort to find a digital version give some protection or leniency? Should we encourage the instructor to contact PBS or the show's producers to obtain copyright clearance for making a digital copy?
We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best. That is the gold standard. If you have permission, the blood, sweat, and tears (or stress, more likely) of a Fair Use analysis are not needed.
This scenario does not occupy any legal high ground. For a library in this position—dealing with the increasing rarity of VHS players—there is great guidance out there from the Association of Research Libraries’ “Code of Best Practices in Fair Use” (http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf): Here is what the code has to say on this issue…
Even when libraries retain the originals of preserved items, digital surrogates can spare the original items the wear and tear that access necessarily inflicts. Section 108 of the Copyright Act authorizes some preservation activities, but does not address some of today’s most pressing needs…[including] the transfer to new formats of materials whose original formats (such as VHS magnetic tape) are not yet obsolete (as the term is narrowly defined in section 108(c)) but have become increasingly difficult for contemporary users to consult.
Case law also acknowledges this VHS problem, but gives no relief: “Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.” (University Studios et al v. Corley, U.S. Court of Appeal 2nd Circuit, 2001). This case is 15 years old, which means a lot has happened in the world of technology, but is still good law.
So the answer is, for now, unless you are making a disability accommodation, or faced with a crumbling copy, there is no iron-clad loophole or clear precedent to allow the proposed conversion to be a “fair use.”
That said, if you have a deteriorating copy, a good-faith effort to re-purchase it in the original medium will certainly contribute to a fair use defense if you duplicate it to preserve this resource.
To help both you and your institution show that you have gone through this exercise, when you address such questions, I advise that you compose short emails to yourself, documenting the question, process, and conclusion. A simple:
“Instructor stopped by today and asked if we could convert VHS in the collection to DVD for ease of access. I let her know we’ll try to purchase a copy on DVD or seek permission of the copyright holder to make a copy on DVD.”
“Instructor stopped by today and asked if we could convert VHS to a format that would allow Deaf student to view closed-captioned version; we are arranging conversion solely to allow reasonable accommodation under the ADA.”
“Instructor pointed out that VHS tape in collection was not working right. [Co-worker] and I verified the condition. As best practices state it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials, the library will create a back-up copy, UNLESS a fully equivalent digital copy is commercially available at a reasonable cost. We will of course not provide access to or circulate original and preservation copies simultaneously.”
This July, various news outlets reported that the world’s last manufacturer of VCR’s has cease production. Please check back on this issue; we’ll update this entry in the FAQ when we have better guidance, which should be coming soon. Congress is working on new guidelines, and was recently told by the Register of Copyrights, Susan Pallante: “In its current state, Section 108 is replete with references to analog works and fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries.”