Copyright

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"^[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

 

 

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[1] Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating.  You just can't fake selecting a favorite civil rights case.

[2] The basics of registration, including the basic elements it asserts, are in "Circular 2" found at https://copyright.gov/circs/circ02.pdf.

[3] Back when I was in law school this type of group work drove me crazy.  I am a good team player professionally, but group academic work brought out the lone wolf in me.

[4] For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."

[5] To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission.  For permission, please write to ADDRESS.  The author generally gives permission to those whose use will align with the author's values and agree to attribution."

[6] An injunction is a court order to "cease and desist" infringing use of the work.

[7] "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD.  And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.

[8] The "actual" costs and damages created by the infringement.

Your understanding is correct, but there are three additional details it is helpful to consider in this type of situation:

First, when a school confronts a concern like this, it should take a careful look at the license (the permission to use a copyright-protected composition) it purchased. 

This is because a license for sheet music can convey not only permission for on-site performance and broadcast, but also "recording" and "publishing" (posting).  I have observed that the range of these permissions will vary not only between publishers, but even between songs at the same publisher.  So, before recording (or deliberately not recording), check the fine print; you might have more (or less) permission than your district thought.

Second, it is good to consider why the school wants to make the recording and post it on the school website.  Is it to simply showcase the band on a page dedicated to the school's achievements?  Is it for fundraising purposes?  Or is it posted as part of a student newspaper or student club newscast?  If the post is part of an academic endeavor--especially one related to commentary or gathering news--posting part of a recorded performance could be a fair use. 

And third--though still on the topic of fair use--it is important to remember that "Circular 21" pertaining to "Reproduction of Copyrighted Works by Educators and Librarians" confirms that the Copyright Act allows educators to make:

"A single copy of recordings of performances by students...for evaluation or rehearsal purposes...."

Now, under no circumstances am I saying that this provision gives a school permission to record and publish (post) a copyright-protected musical work.  But a copy that is created incident to streaming[1] can be retained by the school or teacher, and perhaps posted to an intranet, if they plan to use it for rehearsal or evaluation later. 

The important take-away from all of these is: your school may have options from not only within but additional to the license.  By assessing the precise permission your school received, the reasons for recording, and the reasons for posting, a school can consider their full range of options.[2]

Of course, what copyright law can give, contract law can take away.  So, if your school has secured a license with a specific agreement that you will not make and post a recording, remember that's a contract term it agreed to, even if fair use would otherwise authorize the use.[3]

I know, I know, thinking about copyright while planning to make the most of a performance can feel like allegro, adagio, adagio, allegro...

Just andante, like the question models, plan what you need, and you'll find a good pace!
Thank you for a thoughtful question.

 

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[1] I know "streaming" and "recording" are different, but as a technical matter, "streaming" does create a digital copy, even if it is fleeting.

[2] This answer does not consider limited posting on an intranet, although I'd argue that with planning such posting could be consistent with the CONTU guidelines for retaining a copy for rehearsal or evaluation.

[3] This is why people negotiating for license content should always be trained to not negotiate away rights your district has by law.

I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time.  For instance:

• Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.[1]
• Documents that are "private information" under New York's new(ish) SHIELD Act[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
• Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.[3]

And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors. 

An educational institution considering levels of access and use of student-related documents[4] has to consider not only these legal factors, but their unique policies.  Factor in fame,[5] and the stakes get even higher. 

Because of that complexity, I could muse/write/talk on this topic for hours.  But let's focus on the member’s specific questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?

If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.

If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.

But as the member points out, there are other considerations.

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”[6] then they are by definition "education records" under FERPA.[7]  That is because the FERPA is intentionally expansive.  So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.[8]

BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records.  Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).

So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.

Which brings us to:

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.

For some, this may be a complex and far-reaching catalog of institutional history.  For others, it may be simply hanging onto every program for every graduation ceremony.  And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.

Whether formal and well-funded, or informal and not funded,[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. [11]

If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy.  In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).  

All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics?  Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution. 

I would like to thank the member for this question, it is a good one.  And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!

Thanks.  I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.

 

 

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[1] See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights." [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[2] Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.

[3] I am writing this on February 10, 2021. 

[4] This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work.  For that, see RAQ #108 and RAQ #91.

[5] What is "fame?"  It's a notion that is taking odd journeys these days.  As I said in footnote #3, I am writing this on February 10, 2021.  Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat.  I bet he can't wait for his 15 minutes to be over.

[6] "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

[7] Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."

[8] There are exceptions to this, of course...one big one being the records of campus police.

[9] I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass).  I read her letters when I need a shot of pragmatic inspiration.

[10] Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet. 

[11] The "Ask the Lawyer" from November 4, 2020 has more about ethical considerations for archival projects: RAQ #178.

[12] For this question, "risk" is not just legal risk, but relational and reputational risk, too.  After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it?  (Of course, there might be).  Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.

This is a cool idea—aggregating and cataloging drone shots.   Someone fifty years from now will be very, very grateful for that type of work!

But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security.  How does the library make sure none of those concerns negatively impact the project?

Let's take those in order.

Legal Concern: Copyright

This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone.  They are never the property of the area photographed (unless the property owner is also the photographer).

What is the "one exception" to that ownership?  If the photographer is taking the drone images as part of their regular job,[1] the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).[2]

Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library.  Other than those complications, with the right agreement,[3] permission and use should be simple.

 

Legal Concern: Privacy & Security

The "copyright" section, above, is fairly simple.  Things are a bit more complex when it comes to privacy and security.

There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security.  Here are the most common I could rattle off at a cocktail party:

• The risk of the images being the result of "Unlawful Surveillance,"[4] which is an “E” Felony in the state of New York.  "Unlawful Surveillance” is (among other things) taking a picture of a person dressing (or undressing) in a place where that person has a “reasonable expectation of privacy” (and they haven't agreed to pose for the picture);[5]
• The risk of the images being a violation of a person's "right of publicity,"[6] which is using someone's image for commercial purposes without their written authorization.  For instance, if the images were found on a site where they were being used for a commercial purpose.
• The risk of the images being the result of, or evidence of, trespass, harassment, and other criminal law violations that could result from a person deploying a drone over a residence, business, or area near an airport.

In addition to my "rattle it off" list, I did some research.  If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:

• The risk that the images are the result of harassing sea otters.[7]

In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation.  We’ll address that more in the last section.

 

Legal Concern: FAA-restricted Areas

The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:

https://www.faa.gov/uas/public_safety_gov/media/FAA_UAS-PO_LEA_Guidance.pdf. [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times.[8]  However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times. 

The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:

https://www.faa.gov/uas/recreational_fliers/where_can_i_fly/airspace_restrictions/

This was so cool, I looked up my part of the state:

And now I know where not to fly the drone I don’t own.

 

Sample License for Use of Drone Pictures

Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space,[9] or otter harassment, here is a sample license for securing permission to include them in an online catalog:

 

IRREVOCABLE, NON-EXCLUSIVE LICENSE

[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.

Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.

In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].

 

Signed by Photographer: _________________________.

 

Signed on behalf of the Library: ___________________________.

 

A Final Word on Getting "Permission"

This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.

However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.

Why is that?  If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary. 

Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value.[10]  And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections[11] the project will be able to avail itself of.

Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. [12]

My takeaway in this final part of the answer?   If your project is of academic, historical, or social value, don't let lack of permission be a roadblock.  Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on.  This will lay the groundwork for a strong archive or catalog.

 

Posterity will thank you.

 

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[1] Head Photographer at "Drone Shot Weekly?"

[2] Here is the FAA guidance on media use of drones for newsgathering: https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]  It’s interesting: even if using a small drone, such use doesn’t qualify for the “hobby” exception, and the drone should be registered.

[3] Do you need the “right agreement?” See the section of the answer called "Sample Agreement" for an example.

[4] NY Penal Law 250.45

[5] JUST TO BE CLEAR: I have 100% confidence that if a library comes across a creeper nude drone shot, they will not include it in an online catalog!  I am just being thorough.

[6] New York Civil Rights Law Section 50.

[7] Per 50 CFR 18.137: "Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones."

[8] Thank you, THANK YOU to the member who sent this question.  Because of you, I got to read the FAA's guidance to local law enforcement for drone-related incidents, which includes this practical guidance "NOTE: Battery life is typically 20 to 30 minutes." 

[9] By the way, it might not be precisely forbidden for your library to post such images, just as a newspaper or academic publisher might reproduce them for purposes of news or scholarship.  But since those categories come with some higher risks (particularly of being told to cease and desist), it is wise to consider consistency with the purpose and ethics of your archive before including them.

[10] I am not saying to not consider them...just don't let them be project-killers.

[11] Such as fair use, journalism privileges, and recognition of the non-commercial nature of the use.

[12] Links to further "Ask the "Lawyer" content on this specific consideration (ethics as a key component to rock-solid archives) are here: RAQ #172 and RAQ #178.

For those readers who haven't been following it, the "CASE Act" authorizes the federal Copyright office to create a "small claims" division for the adjudication of "small" (under $30k, and no award of attorney's fees) copyright infringement cases. [1],[2]

Like the member, I know many attorneys who think this legislation is "awful."  I also suspect that if I took an insurance carrier and a publisher out to a bar, they would think it is "pretty cool," and would toast the efforts of the well-paid lobbyists who worked so hard to ensure it got passed this December along with the federal budget.

There is a LOT of writing out there on the CASE Act, so I am going to focus on the practical aspect of the member's question: when it comes to the inevitable trolls[3] who will use genuine claims and fraudulent allusions to this new method of bringing copyright claims, what should libraries and other information professionals be aware of?

The good news is: even with new legislation, your response remains the same: keep calm, and deal with a copyright infringement allegation step-by-step. 

What are those steps?  Updated for a CASE Act-containing world, here is the "Ask the Lawyer" "Copyright Troll Begone!" Emergency Response Procedure.[4]

 

"Copyright Troll Begone!" Emergency Response Procedure

Step 1: Receiving the complaint

If your institution receives ANY assertion of copyright violation (by email, mail, phone, in person, or fax), do not immediately reply to the allegations.  Never!

If the accusation is in writing, simply move on to step "2." 

For interpersonal outreach (on the phone, in person, in yet another Zoom meeting),[5] state, "I am making a note of your concerns.  What is a good number/email to reach you at [at least one day later]?"  NOTE: Even if they keep trying to get you to argue/response/engage, don't take the bait, just set up a time to reply.

 

Step 2: Dealing with the complaint

Okay, you have in writing before you (either as submitted, or in your notes) an allegation of infringement.   It is either: i) a scam; ii) an honest but empty threat; or iii) a problem.  To determine which of these options it is, you need to either consult your lawyer, or do some research.

 

Step 3: If you conclude it is a scam

There are copyright-based scams all over the place, and with the CASE Act, the scammers will have yet another point of entry for their menacing but baseless threats.  "You owe us $150,000!!!"  "To avoid prosecution, contact us NOW."  "The CASE Act means we can sue you without registration, so we're attaching your bank account for $30k."  Scare tactics.  Bogus claims.

If your attorney or your research shows that the complaint you received is illegitimate, I encourage you to send a copy of it to the New York Attorney General,[6] and to the Copyright Office.[7]  Then you can stop thinking about the claim, and move on with your day.[8]

 

Step 3: If you conclude it is not a scam, or can't tell

If you examine the complaint and it seems legitimate, the only thing I can say is: consult your institution's insurance carrier and/or your attorney as soon as possible. 

Even if you think your use was "fair" (as in, not an infringement), or you can show you had permission, there is too much risk in saying something that could be problematic later, if you respond to the allegation without a pro.

 

Step 4: Ensure the Hand-off

Make sure that whoever is handling the matter for you (attorney, insurance carrier) takes responsibility for the next steps, in writing.  If an attorney is handling it, a letter or e-mail confirming they are representing your institution in the matter is essential.  If your institution's insurance carrier is handling it (many general liability policies cover this...do not forget to check!), you will get a notice of "tender," telling your library that there is coverage, and if/how they will handle it (including if legal counsel will be assigned). With that assurance in writing, you are ready to get back to the business of information management.

 

Step 5: Check in this time next year on the CASE Act

As the blogger cited by the member writes, the CASE Act was only passed this December.  Implementing it will take the federal Copyright Office some time.  Or as they put it[9]:

The Office must establish the CCB by within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementation activities. Proposed regulations will be published in the Federal Register and the Office will provide updates through its NewsNet service.

 

We'll keep an eye on the developing regulations here, and send a "CASE Act" update this summer or early spring.

 

 

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[1] If you want a more official-sounding description, here is the description from the Copyright Office: "On December 27, 2020, the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act) was enacted as part of the Consolidated Appropriations Act, 2021. The CASE Act includes a number of the Office’s earlier recommendations. It establishes a Copyright Claims Board (CCB) in the Copyright Office to hear copyright infringement matters and (1) caps damages at $30,000 total (including statutory damages of $15,000 per work, and $7,500 per work for which an application was not filed in accordance with section 412 timelines); (2) provides an opt-out option for the respondent; (3) includes streamlined procedures that limit discovery and rely mostly on written materials; (4) allows claims by both copyright owners and users for infringement and exceptions and limitations, respectively; and (5) includes additional fees for bad faith claimants and bars those who repeatedly abuse the system."

[2] Here is a link to the legislation: https://www.congress.gov/bill/116th-congress/senate-bill/1273/text

[3] "Troll" has a primary connotation of being an online provocateur, these days.  But in the intellectual property world (patent, trademark, copyright), "Troll" means a person/entity who trades in IP with a goal of suing for infringement.  Either meaning, of course, is nowhere near as cute as the fluorescent heroes of the "Trolls" franchise, who are just darling.

[4] Feel free to print it and put it on the wall near the "handling angry phone calls," and "don't fall for this phishing scam" lists.

[5] If they put the threat in the chat box, just grab a screenshot and continue with the meeting.

[6] You can send a consumer complaint to the NY Attorney General at https://ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint.

[7] The Copyright Office doesn't have a fraud report utility, but you can reach them at https://www.copyright.gov/help/.  You can forward a pdf of it to me, too.  I collect these things the way other people collect menus or bottle caps.

[8] If you are feeling whimsical, you can say "Copyright Troll, begone!" as you put the notice in the shredder.

[9] At the update posted here as of January 28, 2021:  https://www.copyright.gov/docs/smallclaims/ .

There are a lot of legal technicalities hidden in this question, but before we get to them, here is my overall advice: The more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media,[1] the more you can include copyright and trademark-restricted content in social media promotions.

For example: If a library takes a picture of a new DVD, with only the cover content in the photo, and posts it to social media, that could potentially trigger some type of copyright/trademark concern.  But if that same library takes a picture of their librarian holding that same DVD while giving a thumbs-up ("This new movie is librarian-approved!") that concern is greatly reduced, since the proprietary work is only part of the message.

This same guidance applies for book covers, new games, and other media packaging.  Since copyright and/or trademark can both be invoked to protect any of that content (although just how protected the content is will vary from item to item), displaying it on social media as part of your library's overall personality and outreach is much better than using a photo or scan of the book/cover on its own.  When you don't have permission, use of a proprietary image as part of a related but larger social media message ("We have this great book!") is generally a safer approach to image use.

Now, at this point I must note: the "image use" in this question is different from using cover content (let's call them "thumbnails," for nostalgia's sake) supplied by providers like Overdrive for your library's online catalog.  Use of thumbnail content in your catalog (and thus, generally, on your library's website) is likely restricted in the license from the provider, but supplied with the understanding that the thumbnails will be viewed via your library's website as part of the service.[2]

Now, as to announcing movie nights...this question gave me a double-take, because neither copyright nor trademark, in and of themselves, bar listing the bald fact that your library is hosting a (licensed) movie night, and the title of the movie—whether via a poster, or via social media.[3]

But since I have never known a librarian to submit a baseless question to this service, I dug a bit more, and found this statement[4] in the Swank guidance for libraries using their "single event' license:

"If the public library’s social media accounts are set to private, the title may be used. If the library’s social media accounts are not set to private, it is recommended the title not be included. The movie event may be promoted on the social media pages with a link to the title on the library’s website."

So to be clear: copyright doesn't forbid promoting the movie, but restrictions on promotion could be a requirement of the license (the contract allowing your library to show the movie), or (as the case here) a "recommendation"[5] of the licensor, likely at the request of the trademark holder.  This is one of the more bizarre "recommendations" I have run into in the contract-analysis business, and I thank the member for sending it along!

And that's it.  Again, the take-away from this answer is: the more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions as a component of that larger messaging.  Along with being a type of risk management,[6] this will also lend itself to your library having better, richer, and more interesting social media, so it's a win-win; sometimes the law and quality control go hand-in-hand.

And now, to go watch the new [TITLE OF MOVIE REDACTED] with my family.

 

 

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[1] For purposes of this question, I do not consider your library's website "social media," since in many ways these days the website is simply the virtual part of the library.  "Social media," to me, are third-party contractors: the usual and growing array, like FB, IG, TT, Twitter, etc.

[2]That's how OverDrive's does it, anyway: "OverDrive grants you a limited, revocable, non-exclusive, non-transferable license to use the Embed Code to display Samples on Your Site."

[3] Using movies stills and original posters can pose a concern, but here, we're just talking about announcing the title.

[4] You can find it, too: https://www.swank.com/public-libraries/faq/#afterpurchase6

[5] That said: "it is recommended" is not the hallmark of contractually enforceable language.  My guess is that this is something Swank told its content providers it would do, but everyone realized that as a hard requirement, it is pretty ridiculous ("We're showing a movie!  Can't say the title!") and could cost them business. I can see why content providers would ask for it, though, and I bet it shows up in other licenses.  If you have a license with a requirement like this, please send us a copy; I collect contract artifacts like this.

[6] Because it will make it much easier to claim fair use, and also make it much less likely that your library will be accused of infringement in the first place.

This question is a good question for the bar exam!  It is a great blend of contract law and copyright.

Well, that's enough positivity for today; time for the answer, which is...

No.

Here’s the simply reason why I say “no”: as the member states, Netflix, Hulu, etc. tend to[1] restrict their content for personal use, meaning: no classroom/board room viewings.  This means that even if the use is "fair" or otherwise non-infringing, non-personal-use viewing is barred by the agreement the account holder has with the service.

The more sophisticated basis for me saying "no," is this: Netflix, Hulu, and their ilk bar group viewing not only because of the contractual obligations they have to their content owners, but also because to do otherwise would mess with their economic model.  In short: it will cost them money.  So even if a copyright owner says it's okay, they might not be inclined to consent to a use contrary to their contract.

That said, to add to the law-school-ness of your question, I'll add to your scenario:

If the student obtains a DVD or finds an online copy of the 5 minutes they need, and plays that copy (not the one from a commercial content service) to the class, if the student truly has proper permission of the copyright owner, then what would otherwise be an infringement is not.[2]

Of course, this requires a DVD,[3] or an online copy from a source that doesn't bar the use via contract.[4]  And of course, my scenario defeats the purpose of your question, which is to view the 5 minutes of the film in the format that is (likely) the most convenient: streaming.

I am sorry to be a bummer.

 

 

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[1] There are of course exceptions, as these services can feature education-specific content intended for educational use.  But those are the exceptions, not the general rules (at least right now).

[2] Sadly, this hack does not work if you use your personal on-demand account to make the copy.  See how Netflix bars this: "Except as explicitly authorized in these Terms of Use, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use content and information contained on or obtained from or through the Netflix service." Those pesky lawyers think of everything!

[3] Which are quickly on their way to becoming as obsolete as—but not as cool as--vinyl, or cassette tapes.

[4] Which makes it painfully likely the copy is not 100% legit.

My favorite DJ-related story is about how "scratching" a record,[1] as both a musical instrument and an act of composition, evolved in the hip-hop scene of the late 1970's and early 80's.[2]  It is a story of technological innovation, of community culture, and (as all good stories are) controversy.[3]  DJ's, like all contributing figures to culture, make for compelling scholarship.  So I am not surprised to see this question about audio-visual content portraying a DJ on a library archive.

The short answer is: sure, it could be a violation; but there are five things that can keep it on the right side of the law—or at least mitigate the risk if there is an unintentional violation.

Here are those five "things":

First thing

Is the posted video part of a well-developed and organized collection or archive?

If "yes," go on.

Second thing

Does the metadata on the unique video reflect that it is part of a well-developed and organized collection?

If "yes," go on.

Third thing

Is the music part of a recording of an event, or is the music a separate track with all other ambient sound (the crowd, street noise, the DJ talking over the music) removed (or never there)?

Even if "no" go on, but have the next two really, really tight.

Fourth thing

Has your library[4] conducted and documented[5] a "fair use" analysis[6]  of its posting of this particular content, and to the best of its ability, reflected accurate ownership of the item in the metadata and item information on the archive?

If “yes,” go on.

Fifth thing

Does your library have a "notice and takedown" contact point posted on its website, so anyone who believes the content is an infringement can complain, AND has your library registered[7] for "safe harbor" under the Digital Millennium Copyright Act?[8]

If "yes," DJ on!

Why do I have to do the "5-step hustle" to answer what seems like a simple (if compound) question?  Because how and why content is used can transform "infringing use" to non-infringing "fair use."  For a component of a scholarly or historic video archive, this means being able to show that a musical recording incorporated into an audio-visual record is not merely a gratuitous use of the audio content, but rather, a critical element of a work that transcends (and doesn't simply replace) the purpose of the original. 

This is, in some ways, a tall order.  But if you follow steps "1" through "4" above, you significantly increase your likelihood of getting it right. And as for step 5: the DMCA has been in the news, recently, as a part of the national info-tech infrastructure that is due for an overhaul.  But for now, it can protect certain kinds of service providers (like search engines, directories, and other information location tools) from liability for third-party infringement, and it is an essential part of any information database's copyright compliance toolkit.

Thank you for a good question.

 

 

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[1] Which makes a sound like either "schkud-shckud-shzyaaa" or "hschhzka- hschhzka-zreek" depending on how you translate it into onomatopoeia, along with the skill and intent of the person doing the scratching.

[2] According to his tag in the Cornell University Hip-Hop Collection, scratching was invented by Grandwizzard Theodore.  However, there is some assertion that Grandmaster Flash put Theodore on the path to the scratch.  Either way, it is a good story.

[3] If you are looking for a new era to get obsessed with, early Hip-Hop is a good one.  It is replete with geniuses, scandal, and triumph—and provides insight into cultural and community factors relevant to today.

[4] This 5-step analysis assumes your library is a not-for-profit educational institution (like a public library).

[5] As in: done the analysis in writing (generally a form), and retained the form.

[6] From 17 U.S.C. Section 504(c)(2): "...The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords..."  Of course, making video "available" can be considered a transmission under certain circumstances (like streaming), so make sure your "fair use" conclusion is solid.

[7] Your institution can register for "safe harbor" in some instances (when it is more of a "provider" than a "publisher") here: https://www.copyright.gov/dmca-directory/

[8] I like the way Creative Commons does it: https://creativecommons.org/dmca/

At "Ask the Lawyer," we have tackled "yearbook questions" before: in 2018[1] we addressed patron requests to copy physical yearbooks in a library's collection, and in January of 2020[2] we addressed using scanned yearbook images to illustrate a commemorative calendar. [3]

But I have been waiting for this question for quite some time, and I am sure this scenario has a familiar sound to many readers.

"Yearbook scanning"—the creation of digital versions of yearbooks previously available only in hard copy—has been happening for quite a while now.  However formal or informal such efforts might be, the end result (if made accessible) is a searchable, highly accessible collection of images of people in their formative years[4], who for whatever reason, might see the increased access to their former images as problematic.

Although we don't know the motivation of the person asking the member to remove their name from a digitized yearbook, this scenario shows the apex of this concern: a request to be removed.

At this "apex," a person can make a simple, single request to be removed.  Or, they can be persistent about it--making multiple requests, calls, letters, etc.[5]  Or, if they are available, they can make legal arguments.

I can think of several "legal" arguments a person could bring forward to remove their name from a yearbook in the manner described by the member:

• They are a victim of domestic violence trying to elude an abuser.
• They are a victim of stalking trying to elude their stalker.
• They have specific safety concerns based on the general public's easier access to the content.
• They have legally changed their name and identity for personal reasons.
• They have informally changed their name and identity for personal reasons.
• They feel the use of their image is commercial (not likely if the poster is a not-for-profit library that isn't charging for the content).
• The content is defamatory.[6]
• The content is the result of a crime.
• They have been the victim of identity theft and are attempting to optimize their privacy.[7]

Of course, asking for the "legal reason" a person is requesting removal from a digital, online yearbook puts the library in the uncomfortable position of having to evaluate the validity of the answer.  Let' not go there just yet; instead, let's take a closer look at the member's question:

If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright)[8] does the student have a reasonable request? [emphasis added]

The member has used a very, very important phrase to frame this question: "a reasonable request."

"Reasonable requests"—that is to say, requests that might not have slam-dunk legal footing, but still might be a good reason for removal—cannot be analyzed in a vacuum.  In this context, to determine if a request is "reasonable," it must be assessed against the backdrop of the hosting institution's mission, the purpose of the digital collection, and the values and ethics governing both.

That is why for libraries, archives, museums, and historical societies digitizing old yearbooks and other content that can impact living, breathing people, I advise every institution adopt a policy that 1) confirms that the goal of a digitization project aligns with the mission of the institution; 2) confirms how the content will be accessed (will it be added to the catalog to be checked out as an e-book, or be openly accessible as an online archive? etc.[9]; 3) confirms the ethics applicable to the project; and 4) creates an ethics-informed process for raising, evaluating, and acting on any concerns about the content.

For readers out there working in established archives, this ethical framework for selecting, preserving, and enabling access to archival content is already built into your institution's DNA.  However, for many libraries or smaller institutions that are now able to create online collections of easily accessed content through scanning, either to hold on their own servers, or to contribute to a larger initiative--with access unmediated by a library card or on-site access--it may be an area ripe for development. 

For those institutions just arriving at this phase, here is a short sample policy to govern the creation of digital content intended for open access:

ABC Library Policy on Institutionally-Generated Digital Unmediated Content[10]

Policy Although not the primary mission of the Library, from time to time, the ABC Library will create digital versions of content with the intention that such content be made available to the general public via the internet without the mediation of membership in the library or being on the library's premises.  This content can be derived from items in the library's collection, or be generated from material borrowed by the library from another institution as part of a digitization project.    For purposes of this policy, such content is called "Institutionally-Generated Digital Unmediated Content" or for short, " Unmediated Content".    The purpose of this policy is to ensure the ABC Library's creation of such Unmediated Content, whether considered part of a collection or later included in an archive, is consistent with the Library's mission, values and ethics.   Mission The ABC library's mission is to [INSERT].  The ABC Library's creation of Institutionally-Generated Digital Unmediated Content is consistent with this mission because [INSERT].   Code of Ethics The ABC Library recognizes that due to the broad, direct access it can provide, the impact of Institutionally-Generated Digital Unmediated Content can be different from the impact of library collection content accessed by borrowing on-site access at the library.  Therefore, the Code of Ethics governing the ABC Library's creation of such Unmediated Content is the [NAME's] Code of Ethics.   Procedures Any concerns related to the ABC Library's creation of Institutionally-Generated Digital Unmediated Content shall be evaluated per the above-listed Code of Ethics.    Institutionally-Generated Digital Unmediated Content projects with content that depicts (possibly) still-living people, minors, and sensitive subject matter shall be evaluated per the Code of Ethics prior to the creation of the Unmediated Content.   To ensure adherence with these Procedures, ABC Library shall ensure an "Ethics Statement" accompanies all Institutionally-Generated Digital Unmediated Content created by the ABC Library.   Ethics Statement To ensure awareness and consistent application of the Library's mission and Code of Ethics at all phases of the creation and access to such Unmediated Content, all such content shall be accessible with the statement:   "This content is governed by the [INSERT] Code of Ethics.  Concerns that any content violates the right of any living person, or that Code of Ethics, should be directed to [NAME] at [CONTACT INFO]."   Responsibility The board of trustees maintains this policy and evaluates and revises it as necessary.    [INSERT POSITION] is responsible for oversight of this policy and procedure.   All employees and volunteers working on digitization projects must follow this policy and procedure.

Now, with those essential considerations backing us up, here are my thoughts on the member's questions:

A request for removal or redaction of digitized content should be evaluated against the mission and values of the library that created the digital content, the purpose of the digitization project, and the ethics governing the project.

In this case, if the person requested removal without giving a reason aligned with ethics of the library and/or the project, the request should be denied.  On the flip side, if the reason for the request does align with the relevant ethics, it should be redacted or removed.

Here's an easy example of this playing out in the real world:

Every "Code of Ethics" I have seen governing libraries and archives requires that the institution follow the law.  Therefore, if there is a legal reason for removal, it should be done.

Here's a less easy example of this playing out in the real world:

If the request is more vague, like "I just don't want people to be able to find out information about me,"[11] your institution needs to look at the values and ethics it has adopted.  Does personal autonomy and concern for the privacy of living people get a high priority?  If the answer is "yes", there should be a process for redaction or removal.  If the answer is "no," with more priority placed on the integrity of the material, unless there is a legal reason compelling removal, the answer should be, "Sorry, our role is to preserve and make accessible this record in its original form" (or other language regarding integrity of the records, taken from your library’s Code of Ethics).

Personally, although I don't think my yearbooks have anything to hide, I like the option of being able to remove myself from the record until I am dead.[12]  But in saying that, I am expressing a value, not a legal right, and value judgments are harder than legal conclusions.  That is why requests not rooted in solid legal reasons benefit from: a) the library having a strong, consistent guide, like a Code of Ethics; b) applying that guide consistently; and c) ensuring the library has the technical ability[13] to implement your institution's decisions, which are all critical.

Thank you for bearing with me on this answer, I know it is intricate, and perhaps more than you signed on for!  The steps I lay out in this answer are meant to be practical, easy to implement, and designed to help your library document that it is doing its best to balance preservation and access to documents with consideration of privacy and ethics.  That is no simple balancing act, but since requests like the one sent to the member are only likely to increase, it is a good thing to be ready to do.

 

 

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[1] RAQ #47

[2] RAQ #108

[3] The reply to the 2020 question, after walking the reader through a suggested analysis of the content, states: "This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues."

[4] For libraries considering creating a formal archive of digitized yearbooks, this "Ask the Lawyer" answer regarding creating digital archives that include images of children discusses the interplay of legal and ethical issues.  Of course, a yearbook presumes a certain level of both awareness and willing participation, which not all images of minors do.

[5] It pains lawyers to hear this, but not every problem is solved by threatening to sue.  Letter campaigns, online petitions, public shaming, reaching out to people in power...these are non-litigious routes to get relief from problems, too.

[6] I don't just mean that the content makes them look bad, I mean it genuinely meets the criteria for defamation in New York, which is very precise.

[7] One thing the information in old yearbooks can do is help with social engineering of scams to defraud and/or commit identity theft.  "Hi, it's me, Angela, from your high school volleyball team!  Remember, with the red hair?  Yeah, it's me! Hey, can you cash a check for me...?"  Yes, this is exactly how it happens.

[8] Just to confirm: this question has nothing to do with copyright (sounds like the library got the right permission to move ahead with digitization), and has everything to do with the "right to privacy," laws barring use of identity-based content, and ethics.

[9] The difference here is critical!  A yearbook that is digitized and available only as an e-book to be checked out by a patron is very different from an open collection that is available to access and search without borrowing privileges.  This is one reason why archivists have different codes of ethics than librarians.

[10] You will note I do not call this content "archival" content.  As every library council member out there knows, libraries are not archives (although they might have some archives).  That said, in this case, the creation of the digital content is likely to end up in an archive—or a collection that functions like one—and the ethical considerations align almost exactly.  For that reason, the Code of Ethics of a body like the Society of American Archivists might be a good go-to for your policy.  It wouldn't hurt to have a professional archivist on board as a consultant for help evaluating concerns, too.

[11] Remember the person faking being on the volleyball team.  This is not an outlandish concern.

[12] I am already ahead on this.  Having a hatred of head shots, I boycotted my senior picture, a decision that only makes me happier as the years go by.

[13] As the member points out, "removal" in this instance poses a challenge.  In this case, it would be good to explore if "redaction" through an addition of a black bar to the PDF, with an appropriate footnote citing the Statement of Ethics, is possible.

There are a few ways a teacher may be able to show the remote-only students a specific video.

First: check the license to the video.  It may expressly authorize that type of use.

If that doesn’t give assurance...

Second: check to see if the school is set up to follow the TEACH Act.[1]

The TEACH Act is Section 110(2) of the Copyright Act.  It allows for the transmission of certain copyright-protected material by accredited educational institutions under certain conditions, if the school is set up[2] to follow the law.

For the viewing of videos, those "conditions" are:

• The video shouldn't be a product intended solely for instruction via digital networks (the product should say this if it is);
• The copy used must have been obtained legally;
• You can't show the entire video (but you can show a "reasonable and limited" amount);
• That the video is part of the curriculum;
• That only the students enrolled in the class, and the teacher, are watching;
• That the school itself takes a few steps to guard against infringement.

If these conditions are met, the remote learning can commence!

The TEACH Act was handy before COVID, but these days, it is invaluable.  This is why every school district, accredited private school, college, and university should have a "TEACH Act Policy"—so learning can continue as strongly as possible.

 

 

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[1] Other "Ask the Lawyer" TEACH Act commentary is at RAQ #74 and RAQ #155

[2]"Set up" means that the school: institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members about copyright and copyright protection, and applies technological measures that reasonably prevent the transmitted material from being duplicated/published.  For the full recital of what must be done, see the law at https://www.law.cornell.edu/uscode/text/17/110.