RAQs: Recently Asked Questions

Topic: Presenters and vaccination requirements - 09/01/2021
In the RAQ you provided an answer about vaccine requirements for new hires. What about performers ...
Posted: Wednesday, September 1, 2021 Permalink

MEMBER QUESTION

In the RAQ you provided an answer about vaccine requirements for new hires. What about performers or presenters we hire to come into the library, especially to work with children? Are we allowed to ask/require proof of vaccination status before signing a contract?

WNYLRC ATTORNEY'S RESPONSE

A library needs two documents to address this issue:

1.  Its template contract or "rider"[1] for performers and presenters;[2]and

2.  Its current Safety Plan.

How does the contract/rider come into play?  One of the conditions it should list is a "behavior requirement," requiring that any person performing a service at or for the library "will abide by the library's policies, and the reasonable requests of library staff."[3]

How does the Safety Plan[4]  come into play?  This is the document that likely addresses vaccination, PPE, and other safety requirements for those visiting your library.

Now, see how the two work together: the Safety Plan is a library policy; the "behavior requirement" means visitors must follow it.

When the two documents are assessed together, if it isn't crystal-clear that the library requires proof of vaccination before performance, the Safety Plan or the contract/riders--or both--can be amended to require:

To maximize the safety of in-person events, the ABC library requires all providers of in-person events to provide current proof of vaccination against COVID-19 at least seven days prior to the event.

 The ABC library will consider remote options if a prospective performer or presenter requests such a change as a reasonable accommodation under the ADA due to a disability.

How can this be done so simply?

While there are many nuances that libraries must consider prior to flatly requiring vaccination for all employees,[5] WHEN IT COMES TO CONTRACTORS PROVIDING ONE-TIME OR PERIODIC PERFORMANCES,[6] unless there are grant requirements or other obligations specifically hemming a library in, a library can be more blunt in its requirements.

While they can be a very beloved part of a library's offerings, independent contractors have less rights than employees when it comes to a library imposing the conditions on performance. This is because, whether incorporated, or working "DBA", independent contractors are free to accept and reject the terms of any particular contract--and thus have more leverage and freedom than employees.[7]  And because of that, when it comes to requiring them to provide proof of vaccination, there are a few less legal hoops to jump through than with employees (new, or otherwise).

So, after all that, what were the questions? "What about performers or presenters we hire to come into the library, especially to work with children? Are we allowed to ask/require proof of vaccination status before signing a contract?"

 

The answer is: with the right policy and contract terms[8] in place: yes.



[1] A document you can attach to the performer's contract or proposal, setting the terms of the work.

[2] There are any number of forms a standard contract or "rider " for a library to engage performers and presenters can take. It can be in the form of a friendly letter that outlines the terms of the arrangement, or it can be a more formal document that sounds like it was written by a lawyer. Either option is OK, so long as it addresses the fundamental questions: what is being done, how much the person is being paid to do it, and what rules and expectations protect the library from any risks related to the performance. For comments on contracts for performers (both generally and in the COVID Times), dive back into history and review the "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/125.

[3] Very standard stuff.

[4] Which at this point (August 2021) you have probably amended at least five times.

[6] Because contracts with providers of more essential/routine services such as delivery, cleaning, and security are likely to be more complex, this guidance does not apply to those types of services...although of course a library can explore amending a contract with such a provider to require maximum allowable safety measures.

[7] That's the theory, anyway.

[8] A library should work with a lawyer to have a stock performance contract tailored to that library's identity, insurance coverage, and other unique factors.

Tags: ADA, COVID-19, COVID-19 Vaccine, Employment, Library Programming and Events

Topic: Music used for virtual school Halloween parade - 10/23/2020
The elementary is planning a virtual Halloween parade this year. The students will parade through ...
Posted: Friday, October 23, 2020 Permalink

MEMBER QUESTION

The elementary is planning a virtual Halloween parade this year. The students will parade through the building in costume. As they pass through the entrance hallway, there will be a video camera live-streaming the parade via zoom (to families watching from home). The parade committee would like to play a purchased CD of spooky music in the background of the video.

Does this violate the music copyright?

WNYLRC ATTORNEY'S RESPONSE

In the spirit of the season, and the answer I must give, this answer will be a modified version of a scene from Macbeth.

[Cue sounds of wind, rain, and small children trying to line up while thinking about candy and their itchy "Frozen II Elsa" costume.]

ENTER THREE WITCHES

FIRST WITCH: Educator!  I sense thou wouldst put on a show!  And Zoom it to demesnes beyond thy institution!  But if the music is protected by copyright and the school does not have a license to use the music in that manner it will be a violation of the copyright!!!

SECOND WITCH:  And, Educator, know this, as well! The Zoom terms of use state: "Zoom may deny access to the Services to any User who is alleged to infringe another party's copyright!" So be warned, or you be twice-condemned for the foul deed of infringement, by both the copyright's master, and the Powers of Zoom!!!

[Lightning.  Thunder.]

THIRD WITCH:  Ahem.  Of course, you'd have to get caught, first....

[Pause.  The cauldron bubbles.  FIRST WITCH and SECOND WITCH give THIRD WITCH the side-eye.]

THIRD WITCHAhem.  Of course, you'd have to get caught, first....

FIRST WITCH and SECOND WITCH:  Gasp!

THIRD WITCH: What? We're witches!  We have to be sneaky, why do you think we're camped out here in the woods?  And seriously, do you think in the midst of everything happening on Zoom, someone's going to notice?  The world is going so crazy, I'm expecting it to rain toads at any moment!  Give this poor Educator a break.

FIRST WITCH:  Oh, Alecto, you always were a rebel.

Okay, back in the real world...

Sadly, my three witches are right, and this is the answer I have to give.  Since the parade won't be a part of a class, there is no TEACH Act exception, so transmitting the music via Zoom is just like putting it out over a streaming service or live TV: a no-go without permission[1].

That said, I dug around in my cauldron, and I can offer this possible solution:

Round about the copyright go

In the creative solution throw

Songs that "copyleft" be

Can help thee celebrate Halloween

For works freely used and easy got

Search "Copyleft Halloween Songs," and find a lot.

Not very much toil and trouble

"Copyleft" works make music bubble!

 

Just in case my Shakespearean verse is too obtuse, what I'm saying is: Hop on your favorite search engine and type "copyleft Halloween songs."[2]

What will this do?

For those of you who don't know: "Copyleft"[3] is slang for: "I could own and control this copyright, but I am so cool, I am letting you use it, so long as you let others use it, too."  Meaning: "copyleft" work is free to use, by anyone, so long as whatever you generate using the work is also free to use.[4]

Now, as with all clever solutions, this one calls for thorough planning.  I listened to a few of the songs I found this way; not all of them are, as they say, "safe for work" (or at least safe for school) so check out the songs before you Zoom them out to parents. But since this is music the authors have proudly composed and released for free use by a wide audience, I suspect at least some of it will meet your needs.[5]

[NOTE: I don't know if it would work for your school, but this one by Frannie Comstock is hilariously clever[6] (and mentions lawyers)!  If nothing else, give it a listen just for a fun 5 minutes.  Here is that YouTube link written out: https://www.youtube.com/watch?v=XzvlAuUiM5s]

Happy Halloween!

 



[1] I am not weighing if this would be a "fair use."  That said, if the Halloween Parade and the music interacted to make a clever statement or unique medley of work, that could be a possibility.  But I've been to my kids' Halloween parades.  They are darling, they are not ground-breaking, incisive commentary on modern theatre.

[2] Don't search "Copyleft Halloween Music" because for some reason (which I am sure many of you information professionals out there know) it just wasn't as fruitful.

[3] Yes, this is similar to Creative Commons, but it is also different.  For more information, visit https://www.copyleft.org/.

[4] This means that if you make a movie out of the Zoom recording of the parade, using a Copyleft song, that recording needs to be Copyleft, too.

[5] Unless "your needs" involved specifically using the soundtrack to "The Nightmare Before Christmas."  In which case, I cannot help you, because Skellington Productions, Inc. owns all those copyrights, and I don't see them going Copyleft anytime soon.

[6] I don't know Fannie Comstock (is that even a real name?  It sounds like a person who makes candy while panning for gold), and I am not receiving any kickback for this endorsement of her ridiculously clever work.  Which makes sense, since there is no charge to use her highly amusing song.

Tags: copyleft, Copyright, COVID-19, Library Programming and Events, Music, Streaming, Zoom

Topic: Temporary disuse of a meeting room - 8/26/2020
My library's reopening plan calls for not allowing group meetings/ programs for a time. The...
Posted: Wednesday, August 26, 2020 Permalink

MEMBER QUESTION

My library's reopening plan calls for not allowing group meetings/ programs for a time.

There is some concern for a BOT member as to if the library can legally do this. The concern is if a community group or club that regularly meets in the library were to want to meet again, could they challenge the library in regards to this issue? In a nutshell, the question is "Do we legally have the right to suspend and not allow all meeting room use as the library reopens?"

As library director my thought process is that as long as the policy is being equally and fairly enforced to everyone then there should not be an issue. This does beg the question however as to what may happen if the city, which owns the building calls "eminent domain" and quickly demands use of a meeting space they own in an emergency circumstance. This is rare but has happened a few times in the past.

Any input you have would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

I have been looking at some of my post-COVID "Ask the Lawyer" responses, and they are pretty grim.  Such serious writing.

Of course, these are serious days, and operating during COVID-19 is a serious topic.

But I have been on the lookout for a chance for some joy, if not some outright levity.  And finally, this question supplies one!

Why would a question about temporary disuse of a meeting room make me happy?  Well, as some of you may have noticed, very little gratifies me more than emphasizing a library's autonomy.[1]

So, hear me rejoice: Yes, your library has the right to disallow all meeting room use in the interest of safety!

And if that isn't joyful enough, get ready for more good news: this is true whether your library is a tenant or a landowner, a public library or an association library, a library in a big city or a library in a small rural village!

Why is that?  If a chartered library in New York has assessed its unique space, its unique operational capacity, and its unique ability to operate safely, and as a result has adopted a Safety Plan that does not allow meeting spaces or on-site programming, then...there will be no meeting use or on-site programming.  It's as simple as that.

Now, that said, can someone try and complain about it?  Sure.[2] Can a building owner (like a town or a landlord) try and over-ride it? Yes.[3]  Could a pre-COVID contract be implicated?[4]  Yes.  But as an autonomous entity governed by an independent board, can your library make a Safety Plan and stick to it?  Yes.

As it should be.

Of course, within that autonomy is the obligation to steward and utilize library assets responsibly, and in compliance with the law.[5]  This is why the member's point about uniform enforcement and clarity is so important.  If the access is restricted for the Book Club, it needs to be restricted for the Comic Book Club, and even for the Garden Club.[6]  But after ensuring basic fairness and compliant use of library resources, the baseline decision about what facilities to allow access to during the pandemic is in the hands of the library's board and director.  And as I have said in many of my recent answers: they must put safety first.

Only one thing remains to be said: despite my obvious relish for the task, I want to assure the reading public that I still did my homework for this reply.  As of this date,[7] the only court rulings in New York to address litigation or complaints about library access as impacted by COVID-19 are numerous claims about transmission concerns impeding access to a prison law library[8] (now, in that case, I can understand why someone would complain).  But I found nothing regarding action against public and association libraries due to COVID-induced closure, reduced operations, and impediments to general access.  Hopefully it stays that way.[9]

Thanks for a good question and for some time on the bright side.

 

 



[1] It gives me a very "we the people" thrill that no amount of election-year jitters can override.

[2] I am sure that by now (August 25, 2020), MANY of you have heard MANY complaints...complaints about masks violating the ADA, complaints about the Library being too open or too closed, complaints that your signage is in the wrong font, or perhaps complaints about the smell of your hand sanitizer being too fruity.  These days, people just need to complain about something—it helps us feel more in-control.  I know I directed a very strongly worded message to my local government regarding document retention policies after the repeal of Civil Rights Law 50-a; for about 10 minutes, I felt really in charge of my own destiny.

[3] This is why a lease, or at least an agreement with a municipality who may own the library building, is a good idea.  At the bare minimum, such a document should address security/confidentiality, insurance for loss, the protocol for an on-site slip-and-fall, and the process for planning capital improvements.

[4] For instance, a facility rental agreement.

[5] For instance, once your meeting room is again accessible to the public, you can't let a start-up business owner hold a pop-up retail stand there to turn a profit, since that would risk compliance with several laws and tax regulations.

[6] Comics are very cool, but obviously your library doesn't want to play favorites.  And just because the Garden Club shows up with trowels is no reason to give them special treatment.

[7] August 25, 2020.

[8] There are already over a dozen of these.  A typical case can be seen in Vogel v Ginty, 2020 US Dist LEXIS 148513 [SDNY Aug. 14, 2020, No. 20-CV-6349 (LLS)].

[9] It will be hard enough sorting out the impact on budgets and various regulatory requirements.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Meeting Room Policy, Policy, Reopening policies

Topic: Alternative, fair use solutions for when you can't host a virtual read-aloud - 7/14/2020
For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front ...
Posted: Tuesday, July 14, 2020 Permalink

MEMBER QUESTION

For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front lawn and took turns reading 6-7 books. Due to COVID, we can't hold this event in person this year. Our thought it that we could do it virtually - and instead of reading an entire book, we would ask readers to read the first chapter from one of their favorite books. They would film themselves reading (or we would film them) and then we would post the clip on our YouTube channel. One clip a day would be posted - for a total of 24 clips.

Our questions center around copyright infringement and fair use. Could we host such an event? Would this qualify under educational fair use guidelines?
Could we leave the videos up indefinitely -- or would it be better to have a specific time period and then they disappear?

Any guidance - even if it's a "don't do it!" would be helpful!

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Since the onset of pandemic restrictions, "Ask the Lawyer" has written a lot on different variations of this topic.[1]

Since I am tired of being the party pooper on this issue,[2] I am offering up something new.  Here it is:

Don't do it...unless you make it something new.

What do I mean by "something new"?  I mean a use that is so clever, so additive, that even though it uses a copyright-protected work, it creates a work with independent meaning.

Examples of this "something new" are:

  • Extensive[3] "color commentary" combined with the reading.
  • Replacing the characters in the books with people in your town to make a witty commentary about town life.[4]
  • Combining the reading with a special talent, such as reading each sentence of a travel book while traveling to a different yoga position, or reading a baking scene in a book while making a cake. 
  • Humorous juxtaposition, like reading the first scene of Moby Dick[5] while fishing, or reading a book about puppies to your cat.[6]

Despite all the wishful writing out there, the cloud of the pandemic did not bring us the silver lining of automatic expansion of fair use.  That said, it hasn't diminished fair use.  So, if your library:

  • Isn't using the event as a fund-raiser;
  • Is using the event to educate and engage the public;
  • Requires readers to not use the entire work; and
  • Requires a transformative use, like the examples given above...

...[7] there is a strong chance your event can go on as (virtually) planned. [8]

Good luck and happy reading!

 



[2] The answer is "Don't do it, unless you have permission or the work is in the public domain."

[3] "Extensive" means incisive comments at least every paragraph.

[4] Since I don't want to help you avoid a copyright claim only to wind up with a defamation law suit, if you do this, avoid using books that take deep and honest looks at human nature (No William Faulkner, no Maya Angelou, and certainly no Zadie Smith).  Use sunny books that make the best of things!

 

[5] This is a bad example because Moby Dick is in the public domain.  Which reminds me: you can also try using books in the public domain (published before 1924).

[6] Puppies and a cat?! 50% chance to go viral on day 1. 

[7] Which just happen to line up with the four factors of fair use.

[8] Just in case this suggestion appeals to readers, here is some suggested event recruitment text, based on the member's question:

It's time for our annual 24 hour read-aloud!  Usually, we have people camped on the front lawn but due to our work this year to keep everyone healthy, we can't hold this event in person.  Instead, we will do it virtually.

Here are the details for this year's readers: instead of reading an entire book, please work with us to film you reading from the first chapter from one of your favorite books, along with comments or a special related activity by you!  The final product will help us celebrate reading AND the personalities in our town.  Be as creative as you like, but the added content has to be related somehow to the book.

 

Tags: Copyright, COVID-19, Emergency Response, Fair Use, Library Programming and Events, Online Programming

Topic: Local organizations meeting using library's Zoom account - 5/27/2020
My Director has asked me to ask you the following question. In normal circumstances the library wo...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.

WNYLRC ATTORNEY'S RESPONSE

Life is full of surprises.  When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America.  When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.”[1]  And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.[2]

Now, let me be clear, the Zoom “Terms of Use,” most certainly bar simply enabling a “third” party to use a library’s account.  Here is the clause that does that:

You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit). 

But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings.  Both functionally and grammatically—and thus legally—this means the library is the one using the service.  It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway.  Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on. 

So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”

That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.

Physical meetings at your library all must follow some rules.  Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract. 

These documents ensure that the particular rules at that library will be followed.[3] The same should apply when the library is hosting a Zoom meeting for your community. 

In addition, since the Zoom “Terms of Use”[4] and related agreements impose certain rules, and hold the licensee (your library) responsible for any violations, the conditions for library-hosted meetings should not only require adherence to your rules, but also to Zoom’s.

Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:

  • Promoting violence.
  • Harming children.
  • Displays of nudity, violence, pornography, sexually explicit material, or criminal activity.
  • Human trafficking.
  • Supporting or facilitating terrorism or terrorist organizations
  • Any activity that is defamatory, harassing, threatening or abusive.[5]
  • Copyright infringement.

I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings.  While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom.  So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.

To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement. 

NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.

Videoconference Meeting Agreement—TEMPLATE ONLY

Person filling out this form [must be cardholder]

 

Group

 

Meeting date, time, duration

 

Target date to send out the invitation

 

Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.

 

 

Purpose of meeting (must be a purpose consistent with library operations)

 

Estimated number of attendees

 

Record meeting?

 

Live stream meeting?  Please list where the livestream will be accessible

 

Please list your group’s Meeting Facilitator

[see Meeting Facilitator Responsibilities below]

Name:

Title:

E-mail:

Phone number:

Address:

[To be filled in by library]

Library Staff serving as “host” on the videoconference.

Name:

Title:

E-mail:

Phone Number:

Facility Use Policy

[attach]

Additional terms of use

https://zoom.us/reasonableusepolicy

 

 

On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.

It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions. 

The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff. 

The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.

The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).

When it is time for the meeting to begin, the library staff hosting the meeting will state:

“Welcome to [MEETING NAME].  Hosting an online meeting with your group is a service the library provides to our community groups without charge.  Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility.  If you have concerns in that regard, please let me know by sending me a private message during the meeting.  And now I’ll turn it over to [NAME] to start the meeting.”

It is expressly understood on behalf of the group that:

  • The library is hosting the meeting;
  • An employee of the library will initiate the videocall;
  • An employee of the library will co-facilitate the technical aspects of the meeting;
  • An employee of the library will participate in the meeting as set forth above to ensure the applicable rules and the conditions of this Agreement are fulfilled;
  • Participants who do not abide by the library’s rules will be muted or removed from the meeting, in the library’s sole discretion;
  • The library can cancel or terminate the meeting, in its sole discretion, at any time.

Please alert the library to any ADA considerations for hosting this meeting.  For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.

We welcome your ideas for making our co-hosted meetings better.  Constructive feedback may be sent to [e-mail].

 

Signed: ___________________________________

                        [library representative]

 

Acknowledged: __________________________________ on DATE: ______________.

                                    [cardholder]

 

Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public.  However, at all times, it must be clear that this is the library’s meeting.  Account ID’s, passwords, and hosting capabilities should not be given away.  Co-hosting should never be converted into changing the host.  The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host.  Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license. 

And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.



[1] I have since been informed that either pronunciation is acceptable.  Fortunately, with my spare fashion sense, it is not a word I use often.

[2] As found May 23, 2020 at https://zoom.us/reasonableusepolicy.

[3] The conditions in these documents will change from library to library.  Some libraries have to enforce the rules of a landlord.  Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.

[4] As found on May 23, 2020 at https://zoom.us/terms.

[5] By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”

Tags: COVID-19, Emergency Response, Meeting Room Policy, Library Programming and Events, Local Organizations, Online Programming, Policy, Zoom, Templates

Topic: Using tax levy or donated funds to purchase food for community - 4/30/2020
Could we use any of our budgetary funds as collected through our tax levy and/or funds received fr...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

Could we use any of our budgetary funds as collected through our tax levy and/or funds received from donations (restricted and unrestricted) to pay for food (dry goods, fresh produce and/or fruit) and PPE's which would be given freely to the public/patrons some of which may not be from our community (we would not ask them for a library card or ID)?

If so, could it be considered a program or if not what other budgetary designation would you suggest it be given?


 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this, I am going to share a story.  Trust me, it’s relevant.

When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations.  Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.

Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly. 

If there is one thing the lawyers hate, it is quick decision-making.  We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions.   In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.

But with libraries waiting for input, I didn’t have the luxury of time.  My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability.  But I couldn’t take a week or two to decide.

So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.

I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller.  I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”). 

He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good. 

But then he asked:

“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here.  Who would do that?”

I laughed, and it felt good.[1]  I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).

Here’s the truth, though: although I laughed, my secret answer to his question was: Yes.  Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries.  And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery).  That is why the member’s question is so important.

That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society.  And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift[2] or shady transaction was engaged in.

How?

I’ll give you three solutions.

But first…

Some Necessary Background

As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58.[3]  This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding. 

The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.

And just one more thing…

 

Safety First

Okay.  Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE.  Your staff and some volunteers are rarin’ to go.[4]   All you need to do is sort out the legal stuff.

But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.

No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative.  Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).[5]

So with that “safety first” caveat, here are the three solutions:

 

Solution 1: Acquisition and Distribution Only (No programming)

Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).

Action Steps:

Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources.  This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used. 

NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.

Step 2:  Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired.  This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.

NOTE:  On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).

Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).

Step 4:  The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.

Step 5:  The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:

WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and

WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and

WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and

WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and

WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and

WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and

WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and

WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and

WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;

BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and

BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and

BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.

 

Solution 2: A Public Health Program

Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available.  This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.

Action Steps:

Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources. 

Step 2:  Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:

WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;

And add this further action to the resolution:

BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.

And finally…

 

Solution 3: The Partnered Program

Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.

This one I can’t provide a template for: the permutations are just too diverse.  I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.

Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer.  For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.

 

For All Solutions

For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.

How do you check in with a carrier on this?  Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”

While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on.  That said, in my experience, most carriers will encourage your initiative.  They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies. 

Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6[6]) to vote.

And who knows?  They might even have some helpful hints for you as you undertake to support your community.   This whole thing is keeping agents and adjusters awake at night, just like the rest of us.

 

Thank you

Okay, once I start waxing on about insurance, it’s time to pack it in.  I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.

Thank you for a great question, for your determination, and your dauntless innovation.

 



[1] This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).

[2] In violation of Article VIII, Section 8 of the NY Constitution.

[3] One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.”  If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer.  Lucky for me, librarians are innovators, so there are always new topics to address.

[4] Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them.  Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home.  Still others will be coordinating terms of employment with a union.  This answer presumes your library is working within its own, unique parameters.

[5] By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety).  I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table.  At all times.

Tags: COVID-19, Donations, Emergency Response, Municipal Libraries, Taxes, Library Programming and Events

Topic: Fiction Writing Activity as Library Program, Fan Fiction, and Copyright - 4/27/2020
I am in the stages of planning a library one-time-only event aimed at getting college students int...
Posted: Monday, April 27, 2020 Permalink

MEMBER QUESTION

I am in the stages of planning a library one-time-only event aimed at getting college students interested in writing their own works of fiction. There are no class credits involved. My premise is “Where do ideas come from?”

Some now-published authors first writing attempts were in writing fan fiction (fanfic). I may suggest that as a possibility while advising the students that they cannot legally make any money from such works. I was also planning on mentioning pastiche works, where they could have similar characters, situations, etc. Now I wonder if that is an improvement?

I recall a Sherlock Holmes inspired character called Solar Pons. The Solar Pons stories basically consisted of all the Holmes characters with different names, though mentioning Sherlock in the stories. These works were published by August Derleth and later by Basil Copper. [see the attached newspaper article from the 2015 issue of the independent]

I hoped to suggest either of these options as a way to spark some interest, but wonder I’d be opening a can of worms that is best kept shut.

WNYLRC ATTORNEY'S RESPONSE

For this question, the Law Office of Stephanie Adams, PLLC used a ringer--experienced publishing law and published author Sallie Randolph, who works in our office, advising authors on publishing contracts.  We asked Sallie for her take--as both a copyright attorney and an author--on this intriguing question. Here is her reply:

A library program aimed at sparking the interest of college students in writing fiction is a great idea!  Encouraging them to try their hands at fan fiction is good way to give them a jump start. Fan fiction writing can build skills related to such fiction elements as plot and character, and writing fan fiction is widely acknowledged as an effective way to build writing skills, but it is also highly controversial.

I share your concern about the legal risks involved with writing fan fiction. Most college students don’t understand enough about the nuances of copyright law to truly “get” the reasons why they probably shouldn’t share their work online. Absent the consent of the copyright owner, there is no right to create fan fiction. It’s that simple. But the reasons why are complex.

Under copyright law, a work that is “based on” another work is defined as a “derivative work.” The  right to create a derivative work is reserved by law to the author of the original work. In the process, a derivative work becomes an independently copyrightable new work. However, the right to write a derivative work requires permission of the original author. Fan fiction is a derivative work, and, therefore, if unauthorized, is infringing.

Writers who want to create fan fiction should do so with extreme caution. Swirling around in cyberspace are myriad justifications for copyright infringement. Many copyright myths also circulate in cyberspace. People may think it’s OK to post their fan fiction on the web because they’re generating  publicity for the original author, or because they don’t make money, or because  writing fanfic is paying a compliment to the author, or because the original work is out of print. There are dozens of excuses.

Copyright is literally the right to copy. Copyright infringement is what lawyers call a “strict liability tort.” If you copy without permission you are infringing. Assumptions, excuses, and myths are dangerous. Only the copyright owner has the right to decide what others can or cannot do with her work. Copyright owners have no obligation to explain their motives for granting or withholding permission. They have no obligation to even reply to permission requests. There is no such thing as default consent. The obligation to get permission falls squarely on the shoulders of the writer fan.

There are authors who don’t mind fan fiction, a few who actually encourage it, and many others who are solidly against it. Sometimes infringers get away with it because of what I call “author exhaustion.” Such authors are against fan fiction and other forms of infringement, but they’re tired of trying to assert their rights against the infringers. Trying to get infringing material taken down from YouTube, for example, has been compared to playing whack-a-mole.

We’ve all heard stories about how authors feel – about how Fifty Shades of Gray started out as fan fiction, or how a sequel to Catcher in the Rye resulted in the “fan” losing big time in a major lawsuit. The fan author is almost always the party at legal risk, and the misunderstood defense of fair use almost never applies to fan fiction. There was a rare case in which a retelling of Gone with the Wind from a black character’s point of view was held not to be infringing because of the important historical point that it made.

I have read online that J.K. Rowling reads and enjoys speculative fiction about Harry Potter and his fellow characters. I have also read that J.K. Rowling is highly protective of the Harry Potter brand and has threatened to sue fans for including Harry in their writing. I have seen her name on lists of authors who encourage fans to write about Harry and on other lists of authors who do not allow such use.

I know a number of authors who hate the idea of fan fic but have decided not to engage in this particular copyright war. I know of more than one author who have asked fans for plot suggestions from their readers, only to be threatened with lawsuits when they published a story vaguely similar to a reader suggestion. Well intentioned people can argue in circles about the legal and ethical risk. Fan fiction has become a volatile topic.

But what if the all that volatility and copyright debate can be avoided? Many  people seem to think that lawyers are impractical, and I acknowledge that we can often get distracted into theoretical debates. In this case, however, I am happy to offer a piece of  practical advice. It’s simple: focus your event on encouraging students to base their fan fiction on public domain works.

Literature of the past has often inspired new works. Classic stories could similarly spark the interests of the students attending your event. A famous example is West Side Story – a retelling of the Shakespeare classic Romeo and JulietKiss me Kate is based on Taming of the Shrew. Fairy tales (the original ones, not the Disney versions), fables, and folk tales are interesting to adapt. Bible stories are fair game. Even some of the Sherlock Holmes stories are now in the public domain. Classic novels such as Pride and Prejudice, A Tale of Two Cities, Little Women, Kidnapped, or Huckleberry Finn, are just a few examples of fanfiction possibilities. One word of caution: New fan fiction should be based on the original public domain work, not on another fan’s adaptation of that work.

Using public domain works to encourage fan fiction will let you meet the goal of your event by kicking that can of worms on down the road.

Many thanks to Sallie for lending us her insights and experience!
 

Tags: Copyright, Library Programming and Events, Public Domain, Fan Fiction

Topic: Online Library Programming (Any Type of Program) - 4/1/2020
Our library is arranging more online programming in response to COVID-19 closures and reductions.&...
Posted: Wednesday, April 1, 2020 Permalink

MEMBER QUESTION

Our library is arranging more online programming in response to COVID-19 closures and reductions.  What should we be thinking about in making these arrangements?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

 

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

 

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                                        [NAME]

 

Signed for Instructor on _________:_______________________

                                                                        [NAME]

                                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.



[1] I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.

[2] The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming, Policy, Templates

Topic: Live streaming a chair yoga program - 3/30/2020
Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in...
Posted: Monday, March 30, 2020 Permalink

MEMBER QUESTION

Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in person and would like to make it available during our COVID 19 closure. The instructor can live stream herself with payment and we'd like to open it up to anyone. Do we need waivers or disclaimer language on our website?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online chair yoga class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming but can pay those who offer library programming for free, so as the member says, this online chair yoga program should be open “to anyone.”[1]

In this instance, it sounds like perhaps the instructor has (perhaps) been paying for space in the library, while offering on-site or online classes for a fee.  In the new arrangement proposed by the member, the classes become a free library program.  This means the instructor can still be paid, but the payment should come from the library, while the on-line attendees tune in for free. 

The trick in this is to avoid any “fiscal hybridization;” in no event should the library host and promote the event, while the instructor gets some payment directly from attendees.

                                                               

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

CHAIR YOGA AGREEMENT

The [LIBRARY] (“Library”) and [NAME] (“Yoga Instructor”), a yoga instructor certified by [CERTIFYING BODY], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Yoga Instructor will offer classes in chair yoga (“Chair Yoga Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The Chair Yoga Classes will be a target audience of those who can benefit from online social gatherings to participate in routine chair yoga. 

To promote safe participation, at the start and end of every class, the screen will read, or the Yoga Instructor will say:

[INSERT Yoga Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

Chair Yoga is intended as a gentle but serious exercise for the mind and body.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please also know that Yoga, in general, can connect you to feelings that you may wish to address with your mental health provider.  Please stay safe during this time of social distancing and enjoy our class.]

Chair Yoga Classes will be promoted as a free program of the library and Yoga Instructor shall not charge individual attendees for these sessions.

Library will pay Yoga Instructor _____ per session. 

[OR] Yoga Instructor has agreed to provide this programming on a volunteer basis.

Yoga Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Yoga Instructor and Library shall be used during recorded or live-streamed Chair Yoga Classes.

Yoga Instructor agrees that Library may use their name, likeness, and image when promoting Chair Yoga Classes. Library agrees that Yoga Instructor may use its name, likeness, and image when promoting Chair Yoga Classes.

All sessions of Chair Yoga will be recorded by [INSERT] and the recording will be jointly owned by Yoga Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Yoga Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in Chair Yoga Classes.

Yoga Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                            [NAME]

Signed for Yoga Instructor on _________:_______________________

                                                                                [NAME]

                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to the promotion, the session, the recordings to comply with the Agreement, and top make enhancement based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

While there is very little risk of liability for personal injury during livestreamed chair yoga (compared to say, in-person “Acroyoga”…you should see the case law on that![4]), “chair yoga” is targeted to a population with some physical limitations,[5] so attention to these details is a good idea. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

And finally, the most important detail for busy library professionals scrambling to serve their communities right now…

 

6. Remember to breathe

…it helps with stress.

Best wishes for a good program, and happy utkatasana.[6]



[1] I also would not have a concern with it being restricted to cardholders within a system, or cardholders registering in advance to participate for free.

[2] The yoga instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

[4] Here’s a quote from a case, (Malouf v Equinox Holdings, Inc., 38 Misc 3d 1223 [Sup Ct, NY County 2012]): “The exercise during which she was allegedly injured called for her male partner to lie on his back with his legs in the air. She "was told to lean over his feet and put his feet on my pelvis and lean forward and hang limp like a rag doll balancing on his feet with his feet on my pelvic bone”…The next step "was to put our hands together and bring our hands behind our heads with our elbows up in the air" (id.). Then, "the dark-haired girl came and forcefully pushed my elbows behind my head and forcefully brought them together and I screamed Ouch'" (id.). Malouf had not asked for assistance (id. at 31).” 

Ouch, indeed.

[5] Please don’t tell my mother, who does chair yoga at New Hartford Public Library, that I have characterized her activity this way.  There is absolutely no limit to her ability to chastise me over the 180 miles between her house in New Hartford and my house in Buffalo.

[6] “Chair pose.”  One of my favorites.

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: [2020 Pandemic Date Specific] COVID-19 Diagnosed Case Where Person Visited the Library - 3/19/2020
We are seeking guidance as a result of the following: We have been informed (by the Health Depa...
Posted: Thursday, March 19, 2020 Permalink

MEMBER QUESTION

We are seeking guidance as a result of the following:

We have been informed (by the Health Department and via news media) an individual who now has been confirmed to have COVID-19 attended a program at one of our libraries. I have been asked the following questions:

1. To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?
If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees? What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others? If you suggest a courtesy call, can you please provide suggested language?

2. CPLR 4509 speaks to the confidentiality of library records. We have always employed that this further applies to the identification of anyone using the library, those participating in programs, etc. -- meaning that NO information can be provided to anyone without a proper subpoena. Given that this is a situation related to the health and well-being of our community should (they have not, but this is a question that has been asked) the Health Department request the names of program participants does CPLR apply? If so, can you recommend a response to such a question.

Thank you for your assistance.

WNYLRC ATTORNEY'S RESPONSE

To address this very serious array of questions, we’ll take them one at a time.

To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?

The library is not obligated to notify individual members of the public regarding possible exposure; the county health department is obligated to notify the New York State Department of Health, and will coordinate the necessary level of response.[1]

If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees?

In a time of pandemic, information is power.  If the library has the capacity to notify attendees in a way that connects them to meaningful next steps, AND the County Health Department agrees that such notification will be helpful, then: yes, that would be a good thing to do.

However, because the slightest bit of mis-information in this step could potentially cause harm, such a courtesy should only be done in collaboration with the County Health Department.

What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others?

An effort to empower people, through information, to take care of themselves and minimize the spread of disease will not expose the library to liability in the event only known attendees can be alerted.  As stressed above, the greater risk would be mis-informing the public, which is why coordination with the county health department is key.

If you suggest a courtesy call, can you please provide suggested language?

For reasons of confidentiality and accessibility, the notice should not be a verbal phone call, but rather (and only if confirmed as helpful by the County Health Department), a written notice sent to the library’s user’s email address.

Suggested text for your library to review with the health department is:

Dear Library Member:

As you know, the [INSERT] [County Department of Health] is monitoring the development of COVID-19 in our county.

As you can see at the listing [here], the Department has determined that on DATE, a person with COVID-19 attended the [INSERT PROGRAM NAME] program at our library, which ran from TIME to TIME on DATE.

Because the [NAME] Library values every member, and because we believe knowledge is power, we are working with the county to notify individuals who we know were present at the event.  As advised by the County’s guidance [here], encourage you to monitor yourself daily for symptoms of COVID-19.

Further information on what to do in the event of a health concern is on the Health Department’s website at [link].

Your library information is confidential and your participation in the [NAME] event will not be released unless upon your request.

Given that this is a situation related to the health and well-being of our community…[if] the Health Department request the names of program participants does CPLR [4509] apply? If so, can you recommend a response to such a question.

Yes, the confidentiality requirement of CPLR 4509 absolutely still applies.  Here is the language of that law:

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.

Because CPLR 4509 is so clear in its protection of patron information, I am not comfortable concluding that disclosure to a County Health Department is allowed for the “proper operation” of the library, or even in the case of a declared emergency.  Even during times of trouble, we need to follow the law.

However, if the library has the capacity to do so, upon request of the Health Department, the library can write to the impacted patron, and see if the patron will request the disclosure.

Sample outreach to see if the patron wants their information released is:

As a result of a person who visited the [NAME] library testing positive for COVID-19, the county health department has the name and contact information of other patrons who visited during the [EVENT].

By law, your library information is confidential.  Therefore, the [NAME] Library will only disclose your information if you request that we do so. 

Please let us know if you would like us to release your name, address, and phone number on file with the library to the [COUNTY] County Health Department.

You may also directly call the County Health Department about this at [NUMBER]; if you do, tell this it is regarding the COVID-19 case as the [NAME] Library.

In the alternative, the County Health Department may obtain the information via a subpoena or court order.

Those are my answers to the member’s questions.  Here are some additional thoughts:

Legal compliance and ethics are strong supports during tough times. Thank you to the member for thinking this situation through so thoroughly.



[1] 10 NYCRR 2.16v

Tags: COVID-19, CPLR 4509, Emergency Response, Library Programming and Events, Templates

Topic: 501c3 Rules for Meeting Room Use - 11/6/2019
I need clarification about the IRS regulations on 501c3 organizations. A local political group ask...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations

I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms

No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

  1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 
  1. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?
  1. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

 



[1] The member has stated their policy might not be suited to addressing this situation.  We’ll tackle that in a bit.

[2] If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.

 

Tags: IRS, , Library Programming and Events, Meeting Room Policy, Policy, Taxes, Templates

Topic: ADA Compliance When Screening Movies - 1/7/2019
This question has 2 parts:  1. Public Libraries often show movies/films under the auspices...
Posted: Monday, January 7, 2019 Permalink

MEMBER QUESTION

This question has 2 parts: 

1. Public Libraries often show movies/films under the auspices of a public viewing license. A question arose regarding ADA compliance: Does the film have to be shown with closed captioning? What if closed captioning is not an option.

2. When a program is given in a public library does a deaf interpreter have to be provided for every public program? OR is there a time-frame of notification - that is to say, if the library is notified an individual expecting to attend a program requires a deaf interpreter, one must be provide. What is considered an acceptable time-frame of notification? Should this be posted - if so where is it required: Website? 

Thank you for your assistance in this matter.

WNYLRC ATTORNEY'S RESPONSE

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

  • When showing a movie, always use some type of assistive technology to ensure accessibility.
  • When having a large-scale event, always budget and plan for an ASL interpreter.
  • To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

  • the library is not making ADA decisions ad hoc (a recipe for a law suit);
  • that its documentation shows compliance if a violation is claimed;
  • that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
  • that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

 


[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.

Tags: Accessibility, , ADA, Library Programming and Events

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, TEACH Act, Library Programming and Events

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.