Copyright

To answer this question in 2025, we requested a copy of the updated/new license, because just like cheese, slab-on-grade floors, and skin care regimens, contracts change over time.

We got a copy of the license, and it is so festooned with movie studio logos that we aren’t re-printing it here, for fear of angering a trademark bot.[1]

Aside from LogoFest, there were three things that caught my eye about the license:

First, it was formatted like a certificate my ten-year-old gets for being “A Great Speller!”[2]

Second, it does indeed contain the sentence quoted by the member: The license enables use of any legal formats licensed for “home use only.”

And third: The LogoFest has a purpose, which is to work with the “home use sentence” quoted by the member and provide: “All exhibitions by your school of these copyrighted movies for non-teaching uses from the studios represented below are in full compliance with the copyright laws of the United States while this license is in effect.”

This means I can answer the member’s follow-up question: Can they legally put that on their movie license?

If Swank has contracts with the listed studios that allow them to override the restrictions, the answer is YES. Since Swank is a major player with a lot to lose here, I imagine those contracts are in place.

This means that whether the copy is on a streaming platform, an optical disc, a video cassette tape, or an old-school film reel, viewing at the school is authorized by the Swank license, even if it says “for home viewing only”. HOWEVER, to return to the 2019 question that started all this, that does not mean the license has altered the terms of an individual’s streaming service, which are based not only in copyright but in contract law.

To make an analogy: If I take my parents’ car without permission, but when I do, I park it properly and feed the meter, I won’t get a parking ticket (a copyright claim from the studio), but I still might get in trouble for taking the car (a contract claim from the streaming service).

This means that even with this fancy certificate hanging on the wall, a teacher isn’t authorized to use their personal HuFlixPrime[3] account to show it, unless their agreement with the streaming service makes that okay. That said, if the content they showed at the school was covered by the license, the only penalty would be for misuse of the streaming service, not violation of the copyright of the movie.[4]

In closing, I’ll address the elephant in the room: Considering that the fancy new certificate format[5]

 is designed to make schools feel really comfortable about watching movies at the school, is this misleading on the part of Swank? I have to say no. Swank is providing a straightforward license, and it is up to schools to make sure they are providing the appropriate streaming services for teachers to use with it. In doing so, schools should not rely on teachers’ personal streaming accounts but instead provide access to accounts held (and paid for) in the name of the institution.

Thank you for a perceptive question!

The member posing the question is 100% right: the copyright considerations of fanfiction are “tricky.”

A 2018 case in New York,[1] Conan Properties v. Sanchez, involves Ricardo Sanchez, a fan of “Conan the Barbarian,” who for around twenty-five Euro would send other fans a sculpture of a Conan character. Mr. Sanchez promoted his work on Kickstarter and other social media.

The company that owns the rights to the Conan characters sued Mr. Sanchez for copyright and trademark infringement. Mr. Sanchez, perhaps scared that the copyright police[2] were about to descend upon him, did not appear in the case to defend himself, and so the Plaintiff got a “default judgment” (a sort of forfeit win) and asked the court for the type of large commercial damages available for serious and willful commercial infringement.

The judge did her homework about fanfiction (including fan fiction for small commercial gain) and wrote:

[D]efendant is a hobbyist sculptor from Spain and a fan of Robert Howard, and, in creating his figurines as a tribute to the kinds of heroes depicted in Howard’s stories, he requested financial support from the community of Robert Howard fans to help fund and share his hobby. See Compl. Ex. A at 8. Defendant’s apparently meager revenue per figurine, see id. at 5, in a market that reportedly commands much higher prices, see Malmberg Supp. Decl. ¶ 11, suggests that the motivating purpose for defendant’s use was the prospect of fan play—as opposed to commercial gain, see Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 Wm. & Mary L. Rev. 513, 527 (2009) (defining “fanworks” as “works created outside the major [*90] content industries by aficionados of a source text” and existing “because creativity arises out of a sense of play”). Such use is a far cry from the kind of purely deadweight infringement present in piracy and related cases. Indeed, as the Supreme Court has observed: “Fan sites prompted by a book or film . . . may benefit the copyright owner.” Petrella v. Metro Goldwyn-Mayer, Inc., 572 U.S. 663, 134 S. Ct. 1962, 1976, 188 L. Ed. 2d 979 (2014) (Ginsburg, J.).

This was insightful on the part of the judge, but that didn’t get the Conan fan totally off the hook. Instead, the damages, which could have been in the hundreds of thousands, were limited to $9,000 dollars.[3]

While $9,000 dollars is a lot less than the damages in the typical “big” copyright case, it is not chump change. 

So, is there a way a library can sponsor a fan fiction event without urging participants to run afoul of copyright?

Yes!

As the judge points out in Conan Props., some fan fiction is so harmless as to be negligible infringement, and other fan fiction may even be “fair use” under copyright law.[4]

Although it seems counterintuitive, respect for the source material will make it more likely to be considered a “derivative work” (like a sequel or version in a different medium). On the flip side, personal touches that show the impact of the work on the fan’s life and put a new spin on it are more likely to be “fair use,” especially if the context is one of learning and participating in a creative event.

With that in mind, here is a sample participation letter for a Fan Fiction contest at a public library: 

RE:    ABC Library YA Fan Fiction Contest

Dear Participant:

At the ABC Library, we love it when people enjoy a book so much that they are inspired to create a work based on it.

To honor this creativity by our YA readers, we are sponsoring a “YA Fan Fiction Contest” for readers ages 12 to 16.[5]

As you may know, work that is clearly based on the work of another is a “derivative work” that requires permission from the author to publish or display. At the same time, under copyright law, work that comments on the work of others is allowed under “fair use.” 

This is a tough distinction to work with, but for this contest we simply ask that you follow these rules:

1. Your Source Material

If you are using established characters or settings to generate your Fan Fiction, submissions should transport the reader to a new perspective or location that makes the work your own. 

Examples: “Wings of Fire” set in the Adirondacks, or “Akata Witch” with a totally new character finding their powers.[6]

2. Originality

The work should be your original composition without help from other people (or AI). All work should be your own (you can work with a co-author if you submit it with both authors listed).

3. Non-commercial

You agree you won’t sell the work. We won’t sell it either! 

4. Publication and Display

You agree that the work may be published by and/or displayed at the Library. We will give you author credit.

To sign up, please fill in the form below, sign it, and send it in with your submission. Because this is a legal agreement, your guardian or parent must sign this along with you.

Submissions are due by DATE. Please submit them to INSERT with a signed copy of this form. 

Please make sure you keep a copy of your work, because we can’t promise your submission will be returned!

Winners will be announced [etc. with the logistics]. Because life happens, the library does reserve the right to change these dates, but we hope to stick to them!

Here are the contents for a sample form to include with the letter:

You can ask whatever you need to make the contest meaningful; the purpose is to include the benefits of participating together with the creation of the fan fiction, which will strengthen a fair use of the source materials.

This will also educate the participants about the copyright considerations, which will be important as they grow as artists and creators.

Thank you for hanging in there as we reviewed the case law and factors to consider in such a contest. This is a great example of how things can be done when you put the right amount of thought and planning into them. The young readers in your area are lucky. 

Good wishes for a fun event that showcases reader engagement and creativity!

Thank you for your kind words. We’re going to address this question in three chunks:

• Displaying Student Work (putting the work in hallways);
• Using Student Work (in “promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing, plus many other examples”); and
• Solutions (because that is what is requested).

Displaying Student Work

Just last week, I went to my 11-year-old daughter’s art show at her school, where two works (a collage and a self-portrait) were on display with the work of other students grades 5 through 8.

I watched as the students and their families looked over their work, praising, critiquing,[1] and learning together. The art teachers were there, smiling and commenting.

I knew from my daughter that the students had been working on their submissions all year and saw this show as the culmination of a long learning experience.

It sounds like the students referred to in this question are getting a similar benefit. The display is not mere decoration; it is part of an educational experience that teaches creation with an aim to display. I imagine that often, this connects to many learning outcomes in the curriculum.

When display of the work is part of the educational experience, no permission is needed to display the work, because subsection (1) of Section 110 of the Copyright Act allows it.

Section 110 of the Copyright is a broad collection of exceptions to copyright infringement, often in excess of what is allowed by Section 107 (“Fair use”). An excellent commentary on the rights created by 110 can be found here, in the “Notes” tab: https://www.law.cornell.edu/uscode/text/17/110.

For people who want extra credit, I encourage reading the full “Notes” at that link, but for the current question, what’s important is that 110 (1) says:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction...

While generally this refers to the work of third parties (like reading a poem by Marquis Burton during a class on poetry), it does apply to student work if the culminating experience of the work being on display is part of the educational experience.

Of course, just because something is legal doesn’t mean it is appropriate; as the member’s question points out, the school wants to empower and respect the students, not outfox them on an obscure point of copyright law.

To ensure awareness and respect, schools use opt-in and opt-out forms, as mentioned in the question.

Which brings us to the next part of the question.

Using Student Work

Every single example here (promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing) requires written permission of the author,[2] without exception, and when the author is a minor, permission of their parent or legal guardian.

This is where the “opt-in” form mentioned in the question is a great tool.

My favorite thing about this type of form is not that it is used as a mini-contract to get appropriate permission to use student work[3] but rather that it can be used to educate students on their rights as a creator and copyright owner, which brings us to...

Solutions

Below is sample language[4] for a form securing permission to use student work in various media and educating students and their families about their rights.

[Letterhead]

[Date]

Dear student and family:

Our [type] display of student work is approaching!

This form is for two things: display of student work at the show and use of student work in other places.

Please review it carefully and send it back in by DATE.

DISPLAY AT THE SHOW

As a student creator, a student owns the copyrights to their work. Just as important, both state and federal law protect student privacy.

Our [art show/course/class] will allow students to participate in the full experience of creating and displaying creative work.

Because students have the right to control their creative works and have a right to privacy, if a student wants to OPT OUT of the display of their work, they may do so. Otherwise, because this is an educational experience, the work will be displayed, and we will have a show on DATE. Students will not be penalized for choosing not to show their work.

To opt out of their work being displayed, the student can check the below section. It is not necessary to return a signed form in order to participate in the [show/display].

[  ] I OPT OUT of my work being displayed at the school. I understand I will not be penalized for this choice, and I know I can change my mind.

Signed by student: _______________________________

Acknowledged by parent:_______________________________

USE OF YOUR ARTWORK

Because your work is special, the school and our BOCES would like to be able to use it in promotional materials, social media postings, publications, general communications, curriculum writing, and in other places. We will credit you as the student artist!

If you consent to this use of your work, please sign the release below.

STUDENT: I consent to the use of my work in different places.

Signed by student: _______________________________

PARENT/GUARDIAN: On behalf of the student, I also consent to use of their work in different places by the school and BOCES.

Signed by parent:_____________________

To the student: please know that once you are 18 years old, you can revoke this permission at any time; just send the school a note, and if the image is still being used, we will stop using it from that point on.

Thank you!

Conclusion

I know that form is A LOT, but the good news is that if it isn’t returned, it simply means the student’s work is in the show, but they haven’t given permission for it to be used in any other ways.[5]

The experience of preparing creative work for display can be a key educational experience. Using those moments to educate students (and their families) about their rights can enhance their learning experience and empower them.

While copyright can be obscure,[6] experience shows that students who must contend with challenges in life—exceptional learning needs, behavior concerns, etc.—may end up being powerful generators of intellectual property. Students going into trades after career and technical education are very likely to become small business owners and will benefit from learning, early on, that they will own their business names,[7] any designs they might prepare for work,[8] and other work they author as they conduct their business. Early education on these concepts will help them for decades after.

Of course, the member who sent this is knows all this, which is why they asked such an important and thoughtful question.

Thank you!

This is a great question! I cannot wait to dive into the various sections of the Copyright Act that address this.

Before that, however, it is important to define the scope of what is being done (and what is NOT being done).

Of relevance:

• This is being done by an academic library;
• This is being done in a closed environment (not the open web);
• This is being done for access to materials in academic classes.

Also of relevance: the question is limited to published material that the institution does not subscribe to or own. We will assume that this “old” content is not so old as to be out of copyright.

I am sure there are many names in the archives/library biz for this type of asset (“old scanned article” being one of them). But for purposes of this answer, let’s call them Useful But Unacquired Proprietary Electronic Academic Artifacts, or UBUPEAA’s.[1]

And now it is time to dive.

There are not many ways an academic library can justify re-homing and providing a UBUPEAA[2] via a permalink in the library’s digital collections for purposes of classroom use.

Let’s talk about what doesn’t allow this:

Section 108 of the Copyright Act, which does allow libraries to make copies under certain circumstances, specifically doesn’t apply when the library “is aware… that it is engaging in the related or concerted reproduction or distribution of multiple copies… intended… for separate use by the individual members of a group.”[3] So, expressly creating the link for a class (“a group”) is not allowed by Section 108.

Section 107 (“fair use”), which allows anybody to make copies under certain circumstances, cannot reliably enable internal posting of UBUPEAA’s, because each article would have to be analyzed separately (and the analysis could change, based on a particular use).[4]

Section 110, sub-sections (1) and (2), could allow the URL if it is enabling the “performance or display” of the PDF during a synchronous or asynchronous teaching session,[5] but only to the extent that the materials are displayed and shared during the class (not for homework outside class time).

BUT!

Let’s go back to Section 108.

It is important to remember that the decision of the library to make one copy under Section 108 is different than a decision by an instructor or student regarding how to use the copy.

Under Section 108, an academic library can:

(a)… reproduce no more than one copy… if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public… ; and

(3) the reproduction or distribution of the work includes a notice of copyright…

Although the law and the guidance on it largely pre-date scanning and the internet,[6] Section 108 does NOT state how this 108(a) “reproduction” must be made.

So, a regular practice of putting a UBUPEAA on its own URL as part of that academic library’s collection might—unless the library is doing so to gain a “commercial advantage”—be allowed, if the other requirements of Section 108 are followed.[7]

After that, “distribution” of the copy in the collection to others must fall into one of the uses allowed by Section 108.

In this case, after making the article part of the collection, Section 108(d) allows a user (not the library!) to make a copy if:

(1) the copy… becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

This approach turns on TWO VERY IMPORTANT things: 1) no awareness that the original PDF is creating a “commercial advantage” (like saving a licensing fee) and 2) no awareness by the library that there is a plan for “concerted reproduction” (like creating a course pack).

This is where defining the role of the academic library in creating the link is critical.

Unlike when assembling a course packet or ensuring articles available via subscription are accessible prior to listing them on the syllabus,[8] UBUPEAA should only be listed in the collection as available—not prepared for organized dissemination.

And now, I have to set out a very clear disclaimer.

This is NOT a work-around for making articles available without purchase or a license! Remember that the library must be confident that the PDF was not created in a way that creates a “commercial advantage”; if a copy or a subscription is available, this is NOT the solution!

How does this play out in the real world? If a library happens upon a scan of an article published in 2020 with a clear copyright notice published by a readily discernible source that will license it, further use of it will very likely create a “commercial advantage.” But, if a library happens upon a scan of an article it can’t locate via a subscription service, and the copyright owner cannot be discerned, the “108(a) and(d) solution” may be a good approach.

The other approach alluded to in the question—which is to make the copies available but ensure they are behind logins and thus not easily detectable by owners who might be trying to ferret out infringement—is not an allowable use but rather a type of risk management.[9]

For a state institution that is arguably newly immune from copyright liability,[10] this risk might be one the institution wants to take.[11]

For a private institution that is unquestionably subject to the jurisdiction of the federal courts for copyright infringement claims, this risk is much higher and should simply not be taken.

So where does this leave us?

The member asked: If we publicly offer to remediate (as best we can) published content that we do not subscribe to or own so that faculty can place an accessible version of them in their course shells, are we violating copyright?

The answer is “very likely yes.”

But if the question is:

If we publicly offer to remediate (as best we can) published content that we cannot otherwise subscribe to or own and place it in our collection, are we violating copyright?

The answer is, “with proper care, no.”

A heuristic for deciding to add UBUPEAA to a library’s collection would be:

1. Are we aware that or are there clear signs that the PDF was made/obtained illegally?
2. Is there a readily discernable copyright owner or licensing agent we can ask for permission to make/access the copy?
3. Is there an easily determined, reasonable cost to otherwise obtaining the content of the PDF?

If the answer to any of these questions is “yes,” the PDF might not just be UBUPEAA; it could also be an IFALS.[12] But if the answers document that there is no “commercial advantage” to using the PDF, making and hosting a copy as allowed by Section 108(a) and adding it to the collection, for use as any other library item under Section 108(d), is feasible.

Thank you for a great question!

Before we dive into this question, there are few fundamentals to review.

FIRST: Any institution publishing content like a student newspaper should have a “DMCA Agent” where notice of alleged infringement can be sent.[1] This allows a publisher of online content to enjoy “safe harbor” (meaning safety from certain claims of infringement).

If you would like to see if your institution has this, you can check it out at: https://www.copyright.gov/dmca-directory/

SECOND: Okay, that’s great, but of course, the publisher of a college/university student newspaper is usually the school, which is also the owner of the website. Can a publisher have “safe harbor” from itself? Not really, but the third party contracted to host the content can.

THIRD: While the “legacy media” landscape—including the horizon where student newspapers sit—is rapidly evolving, all student publications should still be teaching student journalists and editors how to used appropriately licensed images, or to document when an image is used under a claim of “Fair Use.”

The record of the license or the Fair Use analysis should be retained for at least seven years after publication.

Of course, none of that is helpful to the present situation, but it is important background context!

And with that, let’s answer the question: is it advisable to leave the collection in NYS Historic Newspapers and continue adding to it, or should we plan to take it down and only digitize future copies for in-house preservation purposes?

To answer this, the library (which is part of the college, too) can work with the advisor and student leaders of the paper to ensure the proper documentation regarding licensing and Fair Use is being generated and retained.

The goal of the collaboration should be to educate the student journalists about proper permissions and Fair Use as well as to ensure that the library can continue to properly archive the paper as it has done for almost a century.

This achieves two things: first, the students will learn about this evolving and ever-critical consideration in journalism and creative work. Second, it will position the college and any third-party provider to easily resolve (as in, tell to go away) copyright claimants in the future.

When the college knows that the licensing and Fair Use documentation is being routinely put in place, it can proceed with both the internal archiving and the external archiving.

This sounds a bit arduous, but it boils down to:

1. Set up a meeting with the student newspaper.
2. Discuss the importance of the archives.
3. Discuss how important licensing and fair use is for archiving and day-to-day operations of the paper.
4. Make sure the newspaper has and is following policies for Fair Use and licensing.
5. If you feel like going the extra mile, ask for how much insurance coverage there is for copyright infringement! The insurance policy’s requirements will support adherence to Fair Use and licensing policies.

If things can’t happen that way (because major meetings and policy development don’t always magically happen in a given semester), the fallback is the library’s selective redaction of the content online, with a note on how the content can be obtained in hard copy. “Due to a DMCA claim, this image is not available via our online archive. To obtain access to the originally published content, which has been retained by the publisher in hard copy to ensure archival integrity, contact EMAIL, and it will be evaluated under 17 U.S.C. 108.”

Thank you for a great question!

Yes, we can talk about putting things behind a log-in to avoid misappropriation of content! Thank you for asking.

At the same time, we can (and must) talk about putting things behind a log-in to avoid problems with security, privacy, intellectual property, and data integrity.

Of course, by “things,” we mean “websites,” which are now a significant part of the services provided by libraries, museums, and archives.

Because websites perform a huge array of function, for purposes of this question, we are going to talk about library, museum, and archival websites that perform the following functions:

• Business information presentation (“About us,” “Our team,” “Policies,” etc.);
• Data repositories (archives and online collections);
• Searching the website and/or repository; and
• Integrated library systems services.[1]

Common website functions this question is NOT going to specifically cover are:

• Financial transactions (like donating to a museum over a website);
• Collaborative research (like crowd-sourcing a survey);
• Interactivity (for example, a social media site).

We’ll tackle those another day.[2]

Why am I narrowing the scope this way?

After 30 years of development,[3] libraries, museums, and archives use their websites as alternatives for their physical locations. The value of this—if it was ever in question—was shown during the COVID-19 Pandemic.

Because of this, such websites must be:

• Mission-focused;
• Consistent and reliable;
• Compliant; and
• Trusted.

Current trends in Internet activity show that the risks that were always present when operating and relying on a website are only getting starker. In addition to the operability risks flagged in the Library Journal article cited by the member, the risks posed to security, privacy and data integrity are significant, too.

Here is a short, fictional story that illustrates some of those risks, in combination with a few other factors:

***START OF SCENARIO***

The Scribe Museum is a beloved institution in Tinytown, New York. Tinytown is the birthplace of Daniel D. Scribe, who kept the minutes at the first meeting of an important civil rights organization.

The Scribe Museum is a solid limestone building that has the physical collection of the complete works of Daniel D. Scribe, and recently, it digitized its entire collection. The digital collection is hosted by another group, which subcontracts services to a cloud provider.

To preserve the physical collection while the building’s heating, cooling, and ventilation system is replaced, the Scribe Museum rents a temporary location and moves the archival material per established best practices.

The Scribe Museum’s website is www.scribemuseum.net, hosted by GoMommy.com. The digital collection is open to all. The website says “While our archives are safely off-site and our building is being given some TLC, peruse our digital collection! Civil rights are always open.” The Scribe Museum’s leadership is savvy and does not make the location of the relocated physical archives broadly known.

A person with a lot of free time decides that the Scribe Museum’s civil rights mission is too “woke.” They spend a few weeks patiently downloading the full archive in small tranches and then launch a bot attack to deny service by the website. They then modify the scanned documents to change them in small but nasty ways, create an alternate website at www.scribemuseum.not, and post them to various social media sites to disseminate.

The villain also hacks the Scribe Museum’s server and holds the content for ransom, gets access to and posts all their emails, and uses social engineering to find the physical location of the archive for some old-fashioned property destruction. They also deliver some pizza to every board member as a “message.”

***END OF SCENARIO***

Ugh. Just writing that out was... not fun.

So how can a library, museum, or archive use a log-in system to help avoid this scenario?

We have to face it head-on: there is no one way to avoid this type of scenario, including use of a log-in. Rather, libraries, museums and archives must use a combination of log-in, enhanced security, back-ups, intellectual property protections, and (most critically) train human beings to be safer, or as I call it, “harden the target.”

How does a library, museum or archive harden the target of its website?[4]

Several things:

First, a library, museum, or archive must consider the security and architecture of its website. Is it ready to withstand an attack? Is it set up to be resilient? What level of functionality must it have assurance of?

To answer these questions, the institution must consider—and deeply reconsider—the purpose of its website. Is the website just a directory service (“Get here,” “Accommodations,” “Admission,” etc.), or is the content a core service? Does all the content currently on it have to be there? If so, does the benefit of immediate access outweigh the risks?

After asking these questions, the institution must consider the information it puts on its “open-to all” part of the website, what it might want to put behind a log-in screen, and what should only be accessible after some human contact. For each level of access, the risk of it being compromised should be worth the benefit of having disclosed it.

As the article cited by the member points out, this change is viewed as an existential threat by many cultural institutions. But while it is certainly a big change, it is also a chance to reinvest in human connectivity in addition to evolving technology.

Here are examples of how this opportunity can benefit an institution:

Example 1: After assessing its mission and website, a museum posts only its essential “about us” information on its unrestricted webpages. Wanting the website to stay engaged and dynamic, it also regularly showcases 20 examples of its prime collection, unrestricted and with metadata, on its website and social media. It then allows standing access to search its full digitized collection with a free log-in. To obtain a log-in, a user provides information to authenticate them as a valid user and agrees to the “Terms of Use.” When logged in during open hours, the user also has the ability to live-chat with a real human at the museum, a position that was specifically designed and built into the budget while the website presence was updated.

Example 2: After assessing its mission and website, a library posts all its “about us” information on its unrestricted web pages. Library users with cooperative library system cards can log in to perform all functions on the integrated library system (catalog search, reserves, seeing what books they have checked out). The library also has a separate log-in for those who are interested in its Rare Books Room; that log-in page is accessible after a general page describing the special collection in broad terms. Users without a library card can also call the library to make an appointment to view the rare books.

Example 3: After assessing its mission and website, an author’s archive posts its mission, location, fundraising, and contact information on its unrestricted web pages. The archive is by appointment only, onsite or via videoconference. Except for a few teaser documents to showcase the scope of the archive, the digitized version of the archive is similarly accessible on-site only. The archive invests in people being on-site and using technology to connect with those who want to work with the content. Since the content is still protected by copyright, the archive also registers and takes steps to put the proper notation on digitized content.

Example 4: After assessing its mission and website, a public university with a digital repository of over 200,000 documents related to health and wellness decides that the mission of the repository is only served if the repository can be searched and accessed without a barrier (such as a log-in). The university works with its IT staff and contract provider to design and invest in a database structure that can withstand periodic high “demand” caused by bots or targeted attacks and has a back-up in the event the primary site is interrupted. The university also develops an AI tool to assess when times of high demand require added resources.[5] The university develops and registers a trademark for the repository and uses it in key areas of the service. Workers are also trained and scheduled to be available on-demand for people who need help with the database. Although the extra design and security add costs, it is decided that the added reliability merits the expense.

In each of these scenarios, the institution is using its mission to determine what needs to be freely online without the barrier of a log-in and what should be further restricted. Just as critically, the institution is considering how human talent fits in and how the institution keeps the resource secure and resilient.

Here at the end of 2025, it is really, truly time to take a long, hard look at what is freely available on websites.

Just like the Internet changed the world in the 90’s, AI and its ability to warp the Internet is changing the world in the 2020’s. Wise institutions will use this as an opportunity to review their mission, assess their needs, and “harden the target” by structuring their online presence and policies to meet the needs of the present. The good news is that a key part of that is investing in people.

Thank you for a great question!

[This answer is not being written by AI].

The short answer to the first question (can use of AI risk intellectual property rights in a way that can affect future publication?) is “Yes.”

The short answer to the second question (can there be legal consequences for failing to disclose use of AI?) is “Yes.”

Unfortunately, after those initial easy answers, the range of risks runs the gamut from “life-shattering” to “none at all.”

To illustrate, let’s take this ridiculously compound hypothetical situation:

A grad student is working on a grant-funded project to study social media use by third graders. The primary investigator[1] has developed a tool to counteract the addictive effects of social media on children; part of the project is testing it.

Because the study involves human subjects and minors, it is governed by a protocol that includes strict safety and confidentiality requirements.

The funder of the research has insisted that the copyright to the research and the final work will be owned by the funder. The PI is hoping to patent the tool being tested.

The grad student is supervising three work-study undergrad students who are working with the test subjects (the third graders). The grad student is getting a stipend of $500 whole dollars for over 500 hours of work and is hoping to be named as a co-author. The undergrad students are paid by the hour.

One day, the grad student assigns the undergrads the task of completing summaries of all of the test subject results. To do this, the 3 undergrads (who are also trying to get through finals) tell a free AI resource: “Create a summary of this information that lists the goal of the study, the methods, the controls, and the results for each subject, removing any identifying information about the subject except age. Also provide a summary of the individual reports, noting when the method applied led to reduction in use of social media, and contrasting that result with control subjects.” They then put the raw data through the AI resource and get 20 hours of work done in less than 1. They don’t tell the grad student, disclose the use of the free AI, or retain any information about the AI product used.

In a “worst-case scenario world” some of the results of this could be:

• Information sufficient to deduce the identity of the test subjects (who are minors) is freely available, creating a risk to their safety and identities;
• The human subject safety and confidentiality requirements of the project are found to have been violated;
• Violation of the protocols limits the number of reputable peer-reviewed journals that will consider publishing the work and jeopardizes future funding for the PI and the institution;
• Years later, the PI’s patent is denied because the submission of the new method to the AI resource counted as publication;
• The copyright requirements of the funder are violated, as substantial portions of the research were provided to the AI without permission, so the funder demands a return of funds;
• The undergrad students are found responsible for academic integrity violations years after graduation and their degrees are revoked;
• As the supervisor, the grad student is also accused of an academic integrity violation but is found responsible only for inadequate supervision of the undergrads.

Of course, this is a worst-case scenario. It is important to remember that for every “worst case” there can be a “best case” where trustworthy AI[2] is used responsibly to enhance research, increase efficiency, and maintain appropriate confidentiality. Such use should be disclosed in the final product and assessed as part of the research methodology.

Responsible use of AI is all about details and planning.

To alert students and others to this potential impact, it is helpful to raise their awareness of how posting to social media[3] and using certain AI products can impact them.

Below this answer is a sample “raising awareness” posting for study areas.[4]

I imagine the academic librarians out there can come up with a snappier version, but this one outlines the above-discussed things to consider before posting research on social media or putting it through AI.

Thank you for some great questions on important topics!

Yes, I will do that.

But while I do that, let's also play a game.

Readers, please use your favorite AI and give it this prompt:

"Please suggest a reasonable policy statement that libraries could publicize to their patrons regarding this issue to help ensure that patrons respect author and publisher rights and that libraries will not end up in legal trouble down the road."

Let's see what your favorite AI says! Send your answers to nathan@losapllc.com and we'll post them in a coda to this Ask the Lawyer if we get at least three by April 1, 2026. Please let us know what tool you used and confirm we have your permission to use the output. 

Unassisted by AI[1], here is my version:

[Start of model statement]

WAIT!

Take a breath before you upload someone else's work into AI. 

Here is why: 

• Submitting someone else's work into a site owned by someone else without permission is similar to making copies and distributing it (copyright infringement).
• Depending on the AI you use, the summary or data you get may be unreliable.
• Using the output could have an impact on ethics and academic integrity.

This posting is not to trash AI; it can be a very helpful tool. Here in the Library, our professional librarians are trained to help you find the right research tool for your work. See a librarian for input on what AI products are trustworthy for a particular purpose. 

We'll help you breathe easier. 

[End of model statement]

The legal bases for the bulleted items in the model statement are further discussed in Can Use of AI Impact Ownership and Citations in Academic Work? 

Now let's consider the other aspect of this question; the concept of the "walled garden."

As the member says, a "walled garden" is a "closed" environment. For licensed AI, it often means the user can "switch off" the AI's use of the user-supplied content to train the AI, or limit the training to a specific purpose (such as improving the user's experience).

Because this assurance is part of the legal terms of using a product, the phrase is also making its way into case law. Here in New York, it is part of the infamous "lawyer citing fake precedent and then citing fake precedent to defend himself from citing fake precedent" case:[2]

"In this letter, Mr. Feldman flagged for the Court the "significant challenge" he and many other practitioners face accessing unreported citations. (Dkt. #183 at 1-2; see also id. at 3 ("[I]t should not be assumed that everyone has access to the walled garden[s] of Westlaw or Lexis." [emphasis added]

The phrase is also used in terms of online advertising.[3]

Speaking as both a lawyer and a gardener, I find the easy assurance of a "walled garden" in a commercial product somewhat… iffy.[4] While I appreciate that the "Terms of Use" can provide contractual assurance that "what happens in YourAI stays in YourAI",[5] as any gardener knows, unwanted plants creep in (or out) no matter what. 

For example, even if your institution selects a paid subscription and enables the highest "do not use" settings, it just takes one person with admin privileges to toggle the switches, and soon the rhizomes are putting up new shoots outside the garden wall. On a more nefarious note, it just takes a few errors for the product to not work as promised.[6] This requires users to be vigilant.[7]

For this reason, academic librarians being ready to assist students and faculty in assessing the right AI product to use (and when not to use one) is one of the many reasons why academic libraries are essential in today's higher-ed environment.

Academic librarians who train their teams to help students, faculty, and administrators assess the trustworthiness[8] and suitability of AI products will be ready to meet this challenge. Posting a short policy to inspire library users to connect and ask for help will hopefully get them access to that resource at the right time.

Thank you for a great question.

We'll see if we get that coda.

[1]^ But admittedly slightly assisted by caffeine.

[2]^ The citation for that case is Flycatcher Corp. v. Affable Ave. LLC, 2026 U.S. Dist. LEXIS 23980, 2026 LX 49318, 2026 WL 306683. I found this in the "walled garden" of LEXIS, which is one of the major expenses of running a law firm.

[3]^ See United States v. Google LLC, 778 F. Supp. 3d 797, 2025 U.S. Dist. LEXIS 74956, 2025 LX 206807

[4]^ I was going to go with "suspicious", but that was too strong. It's just… iffy.

[5]^ "YourAI" is a fake product I invented for this answer. I don't want to pick on a real product or it will write me a bad review (check out the Wall Street Journal article from 2/13/2026 describing the experience of developer Scott Shambaugh after he rejected a few lines of his AI project's code).

[6]^ Just to be clear: I am not a luddite. I am "risk-focused."

[7]^ Not "up all night worrying" vigilant, but "checking regularly to confirm all is as it should be" vigilant.

[8]^ For more on assessing "trustworthiness," see the Ultimate AI Policy materials on the  “Ask the Lawyer Webinar Recordings” page.

Before we jump into things, let me first offer this unambiguous assurance: Doubts, begone! The use you contemplated is allowed by law.

Okay, with that out of the way, let's break it down.

As we have reviewed on “Ask the Lawyer” before,[1] under Copyright Section 110.1, nonprofit education institutions can show physical copies of movies in class,[2] so long as the copy they are viewing was not “unlawfully obtained.”

Or, as the law puts it, it is not infringement for a school to engage in:

... performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

When it comes to what constitutes knowledge of an “unlawful” copy, Congress commented on this in House Report 94-1476:

The exemption [from infringement] is lost where the copy being used for a classroom performance was “not lawfully made under this title” and the person responsible for the performance knew or had reason to suspect as much. This special exception to the exemption would not apply to performances from lawfully-made copies, even if the copies were acquired from someone who had stolen or converted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110(1) in such cases, the copyright owner might have a cause of action against the unauthorized distributor under section 106(3), or against the person responsible for the performance, for breach of contract.

Again: this means the in-class showing contemplated by the member can happen, so long as the school doesn't know the copy was unlawfully made (or didn't make the unlawful copy directly).

From the perspective of an author or owner of a work, this can be frustrating: it means that faculty at a college or university can show a movie, read a poem, or display a painting without the permission that, without the 110.1 exception,[3] might be required.[4] 

For purposes of this question, we're going to assume that the use proposed by the member checks ALL the 110.1 boxes:

• The use is for a not-for-profit educational institution;
• The use is by a faculty member or student; and
• The use will be confined to a class in which the students are enrolled (not a student club or an open event on campus).

It also sounds like the school is the owner of the actual physical copy, although that is not required to exercise rights under 110.1.[5]

So, with the member having met all the criteria for an in-class showing (or “performance”) to be held under 110.1, can a notice with a physical copy, saying essentially, “No 110.1 here, you must get permission to play this in class, or we'll sue!” remove the law's protection?

No.

If the law worked that way, every 110 protection from liability for infringement (which ranges from protections for education, to protections for people with disabilities) could be revoked ad hoc. The law might as well cease to exist. Happily, laws usually don't work that way.

Of course, before being able to give such a decisive answer, I checked the most recent case law and copy of the status on LEXIS-NEXIS. 17 U.S.C. 110 has not been amended since 2005. There has never been an opt-out provision that an owner can invoke with a notice on a physical copy. There is no case law that suggests such an opt-out exists.

Although I am able to give a decisive answer to the fact pattern, the member was right to take a pause and check in when they felt unsure. Copyright, especially in academia, can have some odd-twists and turns. But even though this notice tries to pull the rug out from under the feet of educators, 110.1 abides. [6]

Many libraries do indeed have materials[1] that are unpublished, one-of-a kind, original works, such as photographs, letters, drawings, and recordings. 

Some of these works may have significant financial value, while some may be more valuable in terms of local history and culture.

When the donors of such works are deceased, a library is best suited to use them[2] if they can show they have ownership of both the physical object and copyrights.

As the member points out, the copyright will survive the life of the author. And so they ask:

1. If a library/archives lacks a deed of gift (or if the deed of gift doesn’t explicitly transfer copyright), can an heir transfer copyright or otherwise provide permission for the library to publish/digitize/etc?
2. In NY, are copyrights automatically transferred to heirs when someone dies?
3. What if there is no will?

To illustrate the answers to these questions, let’s create a hypothetical scenario:

Person ABC[3] was a long-time member of the Library.  Prior to their death at the age of 98, they left the Library 200 sketches. Some library workers still remember the day Person ABC dropped them off, but there is no documentation (“deed of gift” or other document acknowledging the donation). The Library would like to create a special collection to house the sketches and to digitize them for inclusion in an online archive. The Library has found their surviving spouse, child, and the executor of the estate (who has zero information about the sketches, which were not mentioned in the will).

First, the Library can work with the heirs to obtain an acknowledgment letter confirming there is no disagreement regarding custody and ownership of the physical objects.

Second, the Library can work with the same people to obtain an assignment of copyright, since without a will, the copyright would have passed to Person ABC’s heirs.[4]

And third, the Library can initiate outreach for the letter with an outreach letter summarizing the situation and the parties’ communications.

Here is a sample of the outreach letter:

As you know, the Library has 200 sketches by Person ABC and remains grateful for the donation of these items.

Recently, the Library has been taking steps to formally accession the sketches Person ABC left to the Library. This work includes planning to make digital images of their important work available for purposes of research and scholarship.

To ensure we can put accurate and helpful information about the pictures in our archive and to facilitate its use for scholarship, the Library has two requests:

First, can you kindly sign the accompanying donation acknowledgement? We know that the sketches were left to the Library, but this acknowledgement will help us document their provenance.

Second, if you are amenable, can you sign the accompanying “Assignment of Copyright?” This will position the Library to archive the sketches digitally and to allow use of images for purposes of scholarship and research. 

Thank you for considering providing the Library with this documentation. Please don’t hesitate to contact me with any questions.

Sincerely,

Director

Here is a sample of the Donation Acknowledgement:

DONATION ACKNOWLEDGEMENT

The undersigned: NAME and NAME (“Acknowledging Parties”), all being at least 18 years of age, hereby review and acknowledge:

1.  To the best of our joint and individual ability to determine, the sketches listed below (the “Photographs”) were created by Person ABC:

[insert list/description]

2.  A copy of each of the Sketches is attached as “A.”

3.  To the best of our joint and individual ability to determine, the physical copies of the Sketches were given to the Library by Person ABC in approximately YEAR.

[include signature and witness blocks]

Here is a sample of the Copyright Assignment:

COPYRIGHT ASSIGNMENT

The undersigned: INSERT NAMES (“Assigning Parties”), all being at least 18 years of age, hereby review and acknowledge:

1.  To the best of our joint and individual ability to determine, the sketches listed below (the “Sketches”) were authored by Person ABC:

[insert list/description]

2.  A copy of each of the Sketches is attached as “A.”

3.  Person A was born on DATE and died on DATE. 

4.  The Assigning Parties were their only heirs.

5.  Any and all rights to the Sketches possessed by the Assigning Parties per the Copyright Act and the Estates Powers & Trust Law are hereby assigned to the NAME Library.

[include signature and witness blocks]

For the most part, confirming that the natural heirs have acknowledged the gift—and that they convey any copyrights they have inherited—will ensure no competing claim can muddy the waters of using the works for archival and research purposes.

There is, of course, one large wrinkle here.

What is it?

Money.

In the event the works in question become valuable, the above-listed recital might not be enough.

To illustrate why, let’s return to our scenario...

As it turns out, Person ABC was a famous space marine, although tales of their exploits have only recently made it back to earth. Consequently, interest in her 200 sketches of rocks, deserted wasteland, and tentacles emerging from blown hatchways is WAY up, and a famous movie producer is offering millions of dollars to license her work and story.

Just as the Library is about the sign a deal that will ensure the Library will be able to repair its leaking roof and to add a new “Person ABC” science-fiction wing to the Library, one of the people who signed the Gift Acknowledgement and Copyright Assignment calls a press conference and says “I signed those documents before I knew what I was doing.” They then hire a well-known lawyer to try and argue that the documents are invalid.

Cases that deal with contested “deeds of gifts” and donor documents are all over the place.  When enough money is on the line, every detail will be scrutinized.  Was Person ABC of sound mind when they gave the Library the documents?  Did they unfairly disinherit their child?  Is one of the witnesses now a known liar? 

No amount of customized legal drafting can forestall these types of objections, but here is the take-away: whenever possible, a library or other cultural institution should use a customized donation document reviewed by a lawyer to ensure it is as strong as possible.  The more valuable the asset, the more it is essential to draft and review the documents to meet the specific circumstances. 

Thank you for an excellent question.