Liability

This sounds like a lovely service to both the library and community, so I am going to make this answer as positive as possible.

First, it is clear from the question that the instructor (a “community member”) is not a library employee. So, they are either doing this as a volunteer or as an independent contractor.

Either way, before we delve into the financial/tax/deduction questions, I have to say this:

If the instructor is a volunteer, because yoga can involve some risk in injury, it is wise to have a letter in place confirming the terms of the volunteer service. That letter would address logistics, how the class is promoted, liability considerations (“hold harmless,” indemnification, insurance), and address the financial considerations (the donation arrangement).

If the instructor is an independent contractor who is getting paid to offer the class, it is wise to have a letter in place confirming the terms of the independent contractor service. That letter would address when/where the class takes place, how the class is promoted, liability considerations (“hold harmless,” indemnification, insurance), and finances (the donation arrangement).

For any library (and Friends), although incidents of injury are rare, because of the potential cost, addressing these “liability considerations” is critical. As it so happens, they can be addressed in the same letter that addresses the financial aspects.

Okay, now we can discuss the financial aspects.

The good news is that the member is 100% right: Perhaps a simple solution would be to re-word how this is done…

Exactly.

We won’t go over wording for all the combinations,[1] we’ll just deal with this scenario: a free, donation-accepting class conducted by a volunteer, with the donations turned over to the library, to be turned over to the Friends.

The issue here, of course, is: what is the donated income from the class—a direct donation to the Friends (held briefly by the library) or direct payment to the instructor?

This distinction is important.

If money paid by the attendees is a direct donation to the Friends, the instructor cannot claim a deduction for it (since it was never their income, it was only ever a donation).

If, on the other hand, the money paid by the attendees is a direct payment to the instructor, it can then be a donation from the instructor and to the Library/Friends.[2] That shouldn’t be a problem, unless the income is not declared.[3]

There is no scenario where the donations collected can become the value of the service that was volunteered, and thus the credit is for “in-kind” services. The IRS doesn’t work that way.[4]

The issue presented here is not rare or esoteric. In fact, it is so common, the IRS has a fancy name for it: the “assignment of income doctrine,” which basically says that if you earn money and immediately give it away, it is still taxable income. 

To clear this up, the member’s “re-wording” suggestion is spot-on. However, before changing the publicity, it would be good to focus on the arrangement, so there is clarity between the instructor, the library, and the Friends. After that, the advertisements can be updated to fit the agreement.

Where can you get such a letter? It is best for a final version to be reviewed by your lawyer, but as it turns out, we occasionally get questions about yoga here. So, two places to start are Live streaming a chair yoga program and Liability Waivers for Library Fitness Programs.

In closing: Yoga is a beautiful activity and a library hosting it is providing a valuable community resource; the law and the IRS should never get in its way. With a careful arrangement, that can happen.

Thank you for a thoughtful question!

I have good news: the attorney you married really knows her stuff!

Of course, that means I also have bad news: the document you witnessed is probably invalid!

Of course, without a detailed review of the actual document, I can’t say for sure. But in general, when a person is signing with “power of attorney,” they sign not as the person they are authorized to sign for but as themselves.

The relevant section of the “General Obligations Law” which governs the power of attorney in New York State, is highlighted below this answer.

So, how do you avoid pushback in the future?

A good practice for the library, going forward, is to have a policy on staff members being subscribing witnesses to a document.[1]

There are several options for this, that run the gamut from “we don’t do that,” to “sure, we do that!”

Here is a simple policy statement for “we don’t do that:”

Because library services are confidential, and because it would require checking identification and record-keeping beyond the scope of normal activities, employees are instructed to not perform services as subscribing witnesses during work time.

Here is a simple policy statement for “we don’t do that” when the library does offer such services:

The Library only offers services of a subscribing witness as governed by our Notary Public Policy.

Here is a simple policy statement for “sure, we do that:”

Library employees are instructed to only perform services as subscribing witnesses during work time if the signature and name being attested to matches the name on the signer’s government-issued photo identification.

I appreciate that the patron, probably without intending to do so, put you in an awkward position.[2] With one of the above options being the official position of the library, that can be avoided in the future.

Thank you for trusting “Ask the Lawyer” with this question!

Here is that section from the NY General Obligations Law:

1.

(a) In any transaction where the agent is acting pursuant to a power of attorney and where the hand-written signature of the agent or principal is required, the agent shall disclose the principal and agent relationship by:

(1) signing “(name of agent) as agent for (name of principal)”; or

(2) signing “(name of principal) by (name of agent), as agent”; or

(3) any similar written disclosure of the principal and agent relationship.

(b) A third party shall incur no liability for accepting a signature that does not meet the requirements of this subdivision.

2. When the agent engages in a transaction on behalf of the principal, the agent is attesting that:

(a) the agent has actual authority to engage in the transaction;

(b) the agent does not have, at the time of the transaction, actual notice of the termination or revocation of the power of attorney, or notice of any facts indicating that the power of attorney has been terminated or revoked;

(c) if the power of attorney is one which terminates upon the principal’s incapacity, the agent does not have, at the time of the transaction actual notice of the principal’s incapacity, or notice of any facts indicating the principal’s incapacity.

(d) the agent does not have, at the time of the transaction, actual notice that the power of attorney has been modified in any way that would affect the ability of the agent to engage in the transaction, or notice of any facts indicating that the power of attorney has been so modified.

3. The attestation of the agent pursuant to subdivision two of this section is not effective as to any third party who had actual notice that the power of attorney had terminated or been revoked prior to the transaction.

There is a large array of insurance coverage a not-for-profit organization might be required to have, and another, equally large array of coverage this is "optional" but may be advised as wise.

Most of the "required" coverages are due to having employees.

Since most (all?) Friends groups in New York State do not have employees, we'll skip over those (unemployment, disability, paid family leave, worker's compensation, etc.), and focus on the other types of required coverage first.

With employees out of the picture, what other coverage is required?

If the Friends own a vehicle (also not too likely), automobile insurance is required.

If the Friends lease space, certain coverage (usually "general commercial liability") may be required by their lease.

If the Friends have accepted a grant or performance contract conditioned on certain coverages, those coverages must be in place.  For example, a grant to create a public mural at the Library may come with a requirement for proof of general liability insurance; a contract or MOU with the Library with which the Friends are affiliated might have a similar requirement.

If none of the above-listed "required" conditions apply, is any coverage required of a "Friends" group?

No.

This brings us to the "optional" coverage I mentioned; coverage that is not "required" but is "advised as wise."

For a Friends group that hosts many fund-raising events, some type of general liability coverage is wise (and just like under a lease or grant, may be "required" by contracts for certain event venues).

The scope of such coverage (as in, what types of claims it will kick in for) can change from policy to policy, but the basic function of such coverage is to ensure that the financial risks of conducting the events is mitigated in the event of a worst-case scenario.

What type of activities could a "Friends" group host, that merit such coverage?  As a hypothetical example, let's consider a Friends group that hosts four very popular routine fund-raising events per year: 

Event 1: A Fall "Bookride," a kids-focused event where children ride a horse-drawn carriage filled with books (instead of the more traditional hay.).

Event 2: A Winter "Library Tango", where participants buy tickets to dance the night away, with micro-events like a "Silent Book Auction,” with all proceeds for special programs at the Library.

Event 3: A Spring "Seedlings for Seniors," a tree/plant sale to ensure extra programming for senior members of the community.

Event 4: A "Summer Water Fest," an event where participants pay by the pint to douse local celebrities with water.

Each of these events have a certain—albeit small—amount of physical risk for participants.[1]  In addition, every event will take place at a location where the property owner could face some type of claim for negligent management of the property, leading to injury.

Whether it's getting kicked by a horse at the Bookride or a latex balloon allergy at the Water Fest, the way to mitigate the risk of a person sustaining an injury and bringing a legal action that could jeopardize the finances of the Friends is to either a) have insurance that covers a possible claim; or b) ensure all the risk as assumed by another entity that has insurance, and who has indemnified the Friends; and/or c) use waivers to mitigate the ability of participants to bring a claim.

As seasoned event planners know all too well, the trouble is, each of these mitigation methods bring its own complications. 

As the member points out, insurance coverage costs money, which many Friends groups would rather see go to support their library. 

Meanwhile, asking another organization (like a co-sponsor) to take on all the risk and/or supply the insurance is not always a feasible option.[2]

And using waivers, while effective if properly drafted, can be a real bummer.[3]

This is where a good insurance agent or lawyer can come in.  Either can help a group of Friends assess their actual "exposures" (what risks they face), after which the right type and amount of coverage can be selected.

If almost all the risk can be mitigated (for instance, if the only event is an annual book sale, conducted at the library, which has insurance, and agrees to accept the risk) an informed business decision to accept a small amount of risk, and not get coverage, can be made.  On the flip side, for an active Friends group with a wide array of physical events, it can be decided that ongoing coverage is worth the money.

The same goes for a final type of "optional" coverage: Director's and Officer's coverage, or "D&O," which covers certain claims (contract violation, defamation, advertising injury, theft, copyright claims) that can be made against the leadership of a corporation. 

Just like with other coverages, there is no "one" type of D&O. This means that any policy under consideration should be carefully reviewed, because some policies exclude the more common types of claims, making insured entities wonder: "Why did we pay for this in the first place?"[4]

For a Friends group without employees or many business transactions, extensive D&O might not be needed, but if the Friends are active on social media and in politics (for instance, fighting the good fight for intellectual freedom, increased budgets, and/or capital campaigns), some coverage for "advertising injury" and alleged defamation is wise.

So, what are the important take-aways, here?

First, without employees, it may be that a Friends group is not "required" to have any type of insurance coverage.

Second, a decision to obtain discretionary insurance coverage should be made based on the activities of the group, ideally with advice from a licensed insurance agent or advisor.

Third, such a decision should be revisited from time-to-time, and weighed by the full board, to ensure there is a good match between the coverage (or lack thereof) and the group's activities.

Thank you for an important question!

Before answering this question, I have to point to the extraordinary care the member has put into formulating it.

Prior to considering insurance coverage as a question of budget, this member library has:

• Passed policies to promote safety;
• Taken action to monitor its environment and protect itself, its employees, and visitors from unsubstantiated claims of molestation and abuse; and
• Addressed insurance considerations head-on.

This is the exact order of operations: only once an institution has done all it can to prevent a risk of molestation or abuse, should it then consider questions of adequate insurance and budget.

That said, because it can impact the financial viability of a library, right after assurance of safety, it is critical—as this library is doing—to consider questions of adequate insurance and budget.

Why is this important?

No volunteer board member likes to consider the possibility that their library may need coverage for “Abuse and Molestation,” but there are many scenarios where even a library with the best policies and safest practices can have a credible accusation. For example:

• If a library has a room that it allows community groups to use, the library may be named in a case against the group (if the alleged incident took place at the library);
• If an employee engages in abuse without warning, but an injured party claims the library knew the employee posed a threat; or
• If the alleged incident truly didn’t happen, but the library or named employee still needs to be represented in court until it is dismissed (hopefully in the early phases of litigation).

In other words, there are many scenarios where even a library that has taken the best precautions—and which truly is not at fault in any way—can be named in costly legal proceedings. If there is no insurance coverage when that happens, the library will have to pay.[1]

Further, if innocent trustees, employees and/or volunteers are personally named in such proceedings, the library may also want to defend these people (and in some cases, may owe them a defense[2]).

All that said, as the member points out, there may be a point where coverage is so costly, a small library must decide it simply isn’t affordable.

Which brings us to the member’s question: Is deciding to go without “SAM coverage” truly an option?

There is no legal requirement to have SAM coverage. Unlike automobile insurance and some of the other types of coverage listed by the member, such coverage is not required by law (this might have something to do with its lack of affordability).

However, while not required, it is important for library trustees to remember that the bills for a claim of sexual abuse or molestation can easily be in the tens of thousands—and that’s just to get an unfounded case knocked out in the initial phases of litigation. Therefore, a library with a high degree of confidence that such a claim is highly unlikely to occur, OR, if it does occur, highly likely to be defensible, can take the following steps to be ready, without securing SAM insurance:

Step 1: Ensure that the library has a policy barring trustees, employees, or volunteers from any physical abuse of any person in connection with the library. Importantly, this policy should also state that “In the event the library determines that this policy has been broken, termination will be immediate, and the library will not indemnify or defend the violating trustee, employee, or volunteer.”

Step 2: Conduct a criminal background check[3] prior to hiring employees or accepting volunteers and conduct an annual search of the New York State sexual offender registry to verify that no trustees, volunteers, or employees are on the list (if they are, consult a lawyer regarding next steps).[4]

Step 3: Double-check that every use of library space by outside groups is per a written contract that ensure such users are: a) covered by SAM insurance[5] and b) have agreed to “hold harmless and indemnify” the library, its employees, trustees, and volunteers from any claims.[6]

Step 4: Have a “zero tolerance” policy for any abuse or threats of abuse and enforce the policy “without fear or favor” so the library cannot be accused of being on notice of retaining personnel with abusive tendencies (which can support a claim of “negligent hiring” or “negligent retention”).

Step 5: Maintain a policy that upon notice of a potential SAM claim, the library retains legal counsel to immediately conduct a confidential investigation. [NOTE: it sounds almost silly to say this, but since a SAM claim is also a claim of illegal sexual harassment, this “immediate investigation” approach is already 90% met in a library’s state-mandated Sexual Harassment Policy; the difference is that the “immediate investigation” should be done by a lawyer so the results can be used to either defend the library AND/OR to take corrective action with regard to an offending trustee/employee/volunteer].

Step 6: Maintain a fund balance of at least $20,000.00 dollars[7] that can be readily accessible “for trustee, employee, and volunteer indemnification and library defense” upon a vote of the trustees.[8]

Step 7: Be ready to face a financial crisis at the library in the event of a worst-case scenario (a claim that—despite every possible protection—results in a finding of liability).

Step 8: Long-term, consider working with your cooperative library system or another group on an ongoing basis to explore finding SAM coverage for a group of similarly sized libraries. While libraries in New York can’t band together to jointly buy one insurance policy, entities in New York can loosely coordinate to shop for a good deal together and might be able to find a more favorable rate with a collaborative approach.[9]  

I wish I had better news for the thoughtful member library that submitted this question. But if SAM coverage is truly unaffordable, the additional mitigation steps in this RAQ can help with being ready to both deter and fight a claim of liability. What’s admirable is that rather than simply ducking the issue, you are considering what’s best for the library and community.

Thank you for a very important question.

This is such a beautiful idea! In my experience, there are three things that often impede beautiful ideas:

1. Insurance concerns;
2. Legal concerns; and
3. People who worry that there might be insurance or legal concerns.

This question shows how to protect an idea from these impediments:

1. Ask the insurance carrier;
2. Check with legal; and
3. Be in a position to assure worried people that you've handled the insurance and legal concerns.[1]

As it happens, Ask the Lawyer has addressed this question before, but under slightly different circumstances. In April of 2020,[2] we got a question about lending blood pressure cuffs, pulse oximeters, and forehead thermometers.

The risks assessed in that RAQ are somewhat the same as here, but as these mobility devices are only for on-site use, I will modify the guidance from a 9-step guide to a 3-step guide.

Step 1: Buy Carefully

The equipment purchased per the library's procurement policy and should be under warranty at all times it is in use.

Step 2: Set Clear Terms for Use

The rules and conditions for use of a mobility device should be clearly posted and should be individually agreed to by each user (just once).[3] 

Posted Rules for [Wheelchair/Walker]

This [insert item] may be signed out by any person who has signed the "Equipment Use Agreement" on a first-come, first-serve basis.

The [item] cannot leave [area].

This [item] may be used for up to [#] hours.

The manual for this equipment is at the [insert]. Please review before using.

Please clean the [item] after use; [spray and paper towels][4] are at [insert].

 Equipment Use Acknowledgements and Waiver

I understand the [insert item] may be signed out and used for up to [#] hours.

I have been provided with a copy of or access to the manual for this equipment and agree to use it as set forth in the manual.

Please select:

I agree to clean the [item] after use with the [spray and paper towels] provided.                   

                    OR                   

I request the reasonable accommodation of not having to clean the equipment after use.

I hereby agree to hold harmless the Library and its employees with respect to any injury related to the use of this equipment.

I am at least 18 years of age.

I understand that this agreement is in place until revoked by me in writing.

Reviewed and agreed by _______­­­­­______________ on ____________.

                                        Print name                             Date

Signature:

The Library shall retain a copy of this agreement for six years after its revocation.

Step 3:  Plan, Budget, Train, and Delegate for Function and Cleanliness

As established by Step 1, each mobility device should be carefully selected based on reliability, warranty, and ease of care. 

Step 3 is the other side of that coin: ensuring the mobility devices are maintained as required by the warranty and ready for use by the public.

Since the device will need to be cleaned between each use,[5] budget staff time to quickly check cleanliness and function between uses, and calendar for and log routine evaluation. If there is not sufficient time and budget to do this, it is better to wait and plan to do it in another fiscal year. The routine checking and cleaning of the equipment will be important to both its longevity and to any concerns related to its function (including alleged injury).

Thank you for a great question!

When I was a kid, I watched "Candid Camera"[1] from time to time (as it turns out, this was good training for TikTok).

I don't remember much of "Candid Camera", but I do remember a classic sketch where a person leans their bike against a light pole before going in a store, and then two guys in a cherry-picker truck pick up the bike and thread it over the pole.  The bike owner comes back, and of course, cannot un-thread his bike.  Hilarity ensues.[2]

The point being: people mess with bikes.

So, it is great that this library is considering having a bike lock lending program. 

In a program like this, details are important.  So, I called the library director to talk it over: will the locks be checked out like collection items or borrowed another way?  How will the locks be marked and inventoried as library property?  How will they be returned?[3]

When considering a loan of equipment, a library must consider the risks inherent in the use (and misuse) of the item.  A person who borrows a bike lock to lock up their bike can also borrow a bike lock to lock onto a nearby fence... or even the bikes of people they don't like.[4]  At the same time, an institution can only be held liable for negligence when they owe a "duty of care" and neglect to perform that duty.  So, while a library that gave away 100 bike locks with built-in flamethrowers[5] could face some liability, a library with a well-thought-out program for a small array of locks (sans flames) to meet the needs of patrons should be fine.

A well-thought-out program will:

1.  Source locks that are accessible, safe, and easy to use. 

2.  Ensure the locks selected can be permanently marked as library property, with a call number in case the lock ends up somewhere it shouldn't.

3.  Enable and lend a reasonable[6] number of locks only.

4.  Determine if locks require a library card or can be borrowed as non-collection items.

5.  Develop a policy for locks that limits use to intended purposes, including if the locks stay at the library.

The "policy" does not need to be long.  A policy to borrow a bike lock could be:

Bikes locks can only be checked out for # hours.  When done, please bring the lock back to [location], so others can use it [or put it in the book return bin outside].  If these terms are not followed, the library may remove your ability to borrow a bike lock in the future. 

The library is not responsible for any failure of a borrowed lock to stop bike theft, but we hope a borrowed lock helps keep your bike safe while you visit the library!

There is no magic wording for a policy that will cover every contingency,[7] but solid product selection, clear labelling, and a clear policy should position the library to show that to the extent it owes a duty of care when creating a bike-lock program, it has done so.

Happing locking.

There are many types of insurance, and many types of "exclusions" to risks covered by insurance.

Because of this, there is no one answer to this question.  A library can have "general commercial liability" and "D&O", and "E&O", and "professional liability" coverage...and could still not have coverage for a claim related to library content.

Because of this, rather than examine "types" of coverage, the questions for a board selecting or renewing coverage should be:

Our library is aware that in parts of the country, librarians are being threatened with criminal prosecution for providing access to content as part of their job. We want to indemnify and commit to defending any of our employees who are threatened for doing what their job and our policies require them to do. Does our policy cover costs incurred by the library for providing such an indemnification and defense?

and

Our library is aware that in parts of the country, librarians are being harassed and/or threatened by members of the public for providing access to content as part of their job.  Does the carrier provide resources or risk management support in the event such acts aimed against our employees and volunteers?

For library employees and volunteers, the questions are a bit different:

As the board is aware, librarians across the country are being threatened with criminal prosecution for providing access to content as part of their job. I would appreciate assurance that the library will commit to indemnifying and defending any of our employees who are threatened for doing what their job and our policies require them to do.  Can the board pass a resolution assuring us of that?

and

As the board is aware, librarians across the country are being harassed and/or threatened by members of the public for providing access to content as part of their job.  What resources or risk management support will the library provide employees and volunteers in the event such acts aimed against them?

An important take-away here is that not all risk can or should be mitigated only by insurance. 

Organizations facing expenses, disruption, and threats to employees as the result of protest and intimidation generally have an array of protections they can use to prepare for risk.  This array can include insurance, but can also include:

• Budgeting for contingent needs (such as PR assistance, legal, security, private investigators, and added security);
• Using policy and procedure to prepare for likely scenarios;
• Staff and volunteer training;
• Connecting with advocacy groups (locally and beyond);
• Planning with local law enforcement and the district attorney's offices.

While the question is about insurance (and the answer is: yes, you can get insurance that covers just about anything...just read the fine print to make sure what you think is covered is actually covered), it is really about protection.

Insurance can be great protection, and libraries should use the two questions above to confirm (in writing) that their current policies protect their trustees, employees, and volunteers for First Amendment-related contingencies.

But insurance is just one part of that protection.  When it comes to attacks based on library content, solid policies, a knowledgeable board, and a confirmed commitment by leadership to stand with employees when the going gets tough are just as important.

Thanks for a great question.

There are three things that are potential obstacles to this request:

1.  Safety (and its flip side: Liability)

2.  Security (and its flip side: Loss)

3.  Charitable Status (and its obscure tax-concept flip side: "Inurements")

Put in one sentence, these three obstacles would be phrased as this: "This exercise group wants to be in the library after hours, but someone could get hurt, or forget to lock the door, and anyway I thought we weren't supposed to let private groups benefit from not-for-profit resources?"

All three of these concerns are valid, but with proper planning, they can be eliminated.  The solution, however, is not found in a Meeting Room Policy, but in a programming arrangement.

What do I mean by "programming arrangement?"

The member is 100% right to suspect that a public library can't create special rights for certain people under its Meeting Room Policy (even if the special rights are for a good cause).  But if a library wants, as part of its mission, to facilitate a particular program, that library can make that program a library program...even if it is led by a volunteer.

When a volunteer-led initiative (like an exercise program, or a story hour, or a garden workshop) becomes a program of the library, all three obstacles are eliminated.

There is no longer the risk of it not being covered by insurance (so long as the insurance covers that type of activity).

There is no risk of a security threat (well… none more so than if it were being run by an employee).

And there is no risk of it being considered an "inurement" or improper benefit (since the use is a library program and not an unfair exclusive benefit to a private person or group).

Of course, there are some catches.  If the program will be a library program, it will need to be open to all, without a fee (just like any other library program).  In addition, the person leading the program needs to be designated as a volunteer with a formal letter.  And most critically, the library should confirm with its insurance carrier that the library's policy covers this type of volunteer work and physical activity on site (NOTE: any library using volunteers, for any reason, should confirm those volunteers are covered by the library's insurance).

Here is a sample letter for confirming the role of a volunteer exercise program leader (or leaders):

RE:       Confirmation of volunteer leadership of the Library's NAME program

Dear NAME:

Thank you for volunteering to lead the Friday Night Exercise program at the library!

As a volunteer, you are helping the library provide an additional added service for the community.

The program will be conducted on DAY/TIME until DATE in the ROOM NAME.

The capacity of the program is #.  Participant numbers should not exceed this, due the capacity of the room.  As the program is open to all in the community, participation is first-come, first-serve.

You are being issued [a key/a security code].  Please alert the library immediately if the key is misplaced.  The key must be returned when the program is ended or whenever the Director requests that it be returned.

All attendees must follow the rules of the library.  If you have any concerns about rules, behavior, or the conduct of a participant, please notify the Director as soon as possible.

In the event any person is injured during the program, or any Library property is damaged, please alert the Director immediately, as we must generate a report.

Please notify the Library as soon as possible if a session must be canceled, so we can alert attendees.

[INSERT any other details].

Thank you,

NAME

Director

I realize this solution might not be ideal (a pre-existing group might not want to be open to just anyone being able to attend), but making the program a library program is the only way to achieve the goal in the question (to keep the program going as is and without offering the same terms to other groups).

Further, it is important to remember that mitigating these risks doesn't mean the library has mitigated all the risks (the key could still get lost, and any exercise class brings with it the risk of injury).  But this solution does mean that 1) if there is an issue, damages should be covered; and 2) no one can accuse the library of playing favorites/improperly allowing access to charitable resources. 

So, with insurance coverage verified, a formal program in place, and a volunteer letter confirming who is leading the program, let exercise commence!

Thank you for thinking about compliance while also prioritizing the needs of your library's community.  With enough foresight and insurance, almost anything is possible.

First, some validation: the faculty member is wise to be considering this issue, since publishing contracts[1] almost always put the responsibility and liability for photo clearances on the author.

In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).

Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired.[2] The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.

So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright.  That said, as contemplated by the question, it is almost always a good idea[3] to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research. 

Even more important when using a digital source, however, is first confirming, and documenting, that the image isn't being taken from a website or repository in violation of any of their "terms of use" conditions.  Written confirmations from the archive, or keeping a screenshot of the "terms of use," image information, and metadata, are all good ways to do this.

Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities."  These should both be ruled out before publication.

In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images.[4]  For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission.   Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.

[1] This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!

[2]  A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.

[3] I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."

[4] For more on that, see "Ask the Lawyer" RAQ 172.

I have a lot of fun-loving clients.  Here are some examples of activities I've created liability waivers for:

• Mechanical bull riding
• Smashing a car with a sledgehammer for charity
• A "ToughMudder" event
• Sword fighting

I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]

The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity.  Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.

Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.

The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.

The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.

The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.

Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.

So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.

But wait, there's more.

I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.

So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.

Solution 1: Pass the risk of liability on to the instructor

Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.

For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).

A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.

Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity.  Further, to most experienced instructors, none of this will be an outlandish requirement.

Does this mean that start-ups and amateur instructors might not be able to offer classes at your library?  Yes...and while it may seem harsh, that is a good thing.  If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.

The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.

Solution 2: Work with your insurance carrier

Your library likely has some form of general premises liability coverage.[3]  This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.

Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity?  Your insurance carrier.

Now, what I am about to write may, or may not, be helpful.  In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies.  Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.

When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library.  Do they have waivers they want you to use (even if your instructor has held you harmless)?  Do they have rules they require you to post (even if the rules are pretty obvious)?  Is there an exception in your coverage (does it not cover fitness classes at all)?  All of this is critical to know before your library takes on any risk for a program. 

And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!"  It all depends on what's in the policy.

Solution 3: "One-Waiver-Fits-Most"

With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities. 

What is "low risk" activity?  That is up to your lawyer, insurance carrier, and library.  But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]

Common examples of such "low risk" activities might include:

• Nature walks in a town or city park
• Organized bike ride in public park
• Local history walking tour
• Breathing or mindfulness class
• Croquette, badminton, tennis, Wii[6]

Although they might seem low-risk, I would generally exclude from this list:

• Yoga (including chair yoga)
• Dance class
• Any contact sports
• Organized bike ride on public streets
• Anything involving children running

THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]

While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.

To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:

• your insurance policies
• code of conduct
• list of typical activities
• any grants funding the activities
• Lease (if your library doesn't own the building)

Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host.  For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.

Mix that all together, and you should get:

• a list of "low risk" activities,
• a "one-size-fits-most" waiver;
• some guidance on when you need an instructor contract;
• instructions on how low to save signed waivers[8],
• and a sense of reduced-liability confidence.

Happy Zumba!

[1] Cheerleading may be common, but it is fraught with risk!  P.S. NCAA: it should be considered a sport.

[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

[3] In my work with libraries, I have found this is not always the case.  One important annual task for trustees is to ensure that the library has adequate insurance.

[4] In writing.  Always confirm legal advice in writing.

[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")

[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.

[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.

[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.