Copyright

The “Ten Percent Rule” has been kicking around the world of education for decades!  This is a good chance to bust this myth, since as we’ll review, it is not a reliable stand-alone formula for “Fair Use” (copying without needing permission). 

But we’ll start with another area of the law.  This question involves not only Fair Use, but Section 108 of the Copyright Act, which applies specifically to libraries.

Under Section 108(d), the teacher (or any library user) may make one copy of:

…no more than one article or other contribution to a copyrighted collection or periodical issue…if—

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

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

So in this scenario, if the other above-listed criteria are met, the teacher can make one copy of one hundred percent of the article.

But after that one Section 108 copy is made, unless the school obtains a license to duplicate the article, the only subsequent copies can be those authorized by Section 107 (“Fair Use”).  This question asks: does copying an article from a larger publication meet Section 107’s criteria?

The answer is “it depends” (in law, that is often the answer!).  But what does it depends on?  If only the answer was a simple “Ten Percent Rule” (whether ten percent of the article itself, or ten percent of an original compilation)…. but it isn’t, even in the educational environment.  Instead, the overall circumstances, when viewed through the lens of the four Fair Use “factors,” are what govern this answer.

There are many excellent model policies out there on how to apply Fair Use in academia[1], an every academic institution should have their own.  So I will not use this “Ask the Lawyer,” response to duplicate what’s already out there, but I will take this opportunity to emphasize:  duplication based solely on the rationale that what is being copied is only 10% of a larger article or publication is not determinative of Fair Use, even in an educational, not-for-profit setting. 

A string of recent cases, delving deeply into how the four “Fair Use” factors are applied when making excerpts available in academia, shows things just aren’t that simple.  Commonly called “Cambridge I, II, III, and IV,” these cases involve claims by Cambridge University Press, Oxford University Press, and Sage Publications against  Georgia State University, and showcase the most in-depth, frustrating wrangles about Fair Use in academia ever to be seen.

The most recent ruling in this saga, Cambridge University Press v. Albert (“Cambridge IV”), was issued on October 19, 2018.  If you feel like reading the clear, cogent writing of a federal judge obviously frustrated by another federal judge’s inability to figure out Fair Use, check it out.

As re-emphasized in Cambridge IV, the third factor of Fair Use is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  But the opinion goes on to clarify that the amount used (ten percent or otherwise) is not a factor to be considered in isolation.  Rather, all four factors are to be applied in a way that reinforces the purpose of the Copyright law: promoting the progress of scholarship and creativity[2].   And in academic publishing, the opinion makes clear, the impact on the market  for an article can be just as determinative as that unlicensed copies’ not-for-profit context or academic purpose.

So how can the member’s issue be resolved?  When confronted with a scenario like the one submitted by the member, a librarian should not feel the need to argue with a teacher.  Rather, the librarian should rely on their institution’s attorney-vetted Fair Use policy and form to enable the teach conduct and document their own assessment of Fair Use.

Why do this?  First, a good Fair Use policy and form will walk the teacher through the Fair Use analysis, saving the librarian time (and sanity!).   Second—but just an important—the creation of a written record documenting a good-faith determination of Fair Use will potentially help both the teacher and the institution by mitigating any damages for infringement.  And third, in education, getting these things right is a good example for students.

So once the teacher in this scenario makes their one 108 copy, provide them with a copy of the institution’s Fair Use policy and form.  If your institution doesn’t have a policy or form, this is a good time to get one, since these days, even municipal entities can be found liable for copyright infringement.

Schools, libraries, prisons, museums, student clubs, companies…from time to time, these places just want to hand out snacks, and let people watch a movie.

The problem is, the simple act of gathering people to watch a movie is governed by an intricate web of copyright law, and the legal filaments of that web change from place to place.

To help institutions navigate this variability, movie studios and agencies (including Swank, the agency mentioned in the question) offer suites of “licensing” options.  Swank’s website even features helpful[1] copyright guides to help customers assess their needs and obligations, so they can select the right license—including an array of broad permissions called an “umbrella license.”

Under an “umbrella license,” movies that the agency has the rights to may be shown by the licensee (under an array of qualifying circumstances).  And as the member writes, this can include showing movies from a borrowed physical copy (like a DVD), even if the copy isn’t supplied by the service.

How does that work?  Here’s an example:

Let’s say my daughter’s kindergarten teacher wants to show the class “My Neighbor Totoro.”[2] The teacher stops at a local library to obtain a copy on DVD, which bears the warning “licensed for home viewing only.” 

Next, the teacher checks in with the school and confirms that the school is licensed to show “Totoro” under the school’s umbrella license.  My daughter’s class can now watch a masterpiece of Japanese animation, without fear of copyright infringement.

Now let’s switch the scenario up: the teacher wants to stream the movie from his iTunes.  The school still has that same umbrella license.  Can the teacher use his personal account to show the movie?

No.  Unless Apple has changed their “Terms of Use” (usually some version of “You agree that your use will be for personal, noncommercial purposes”[3]), the use would be in violation of the teacher’s license. 

That said, depending on how broad it is, the school could try and claim the “umbrella license” to get the school out from under a claim of direct infringement.[4]  But that could leave the teacher twisting in the wind!  - Not very good for union relations.

To switch the scenario one last time: let’s say the school has an “umbrella license” from an agency like Swank, and also subscribes to a streaming movie service (Amazon Prime).  Before a class views a movie via the Prime stream, the school would need to review both licenses to ensure the Prime license was consistent with, or trumped by, the “umbrella.”[5]

This issue here isn’t really about streaming v. hard copies.  It’s about licenses.  In our first scenario, the “generic” license on a hard copy is (potentially[6]) trumped by the “umbrella license” held by the school.  In the second scenario, the personal license held by the teacher could be violated when he uses his account for more than “personal” use—even though the school is licensed to show the movie.  And in the third scenario: well, it depends.

The key to this question is license alignment.  If an institution has a license to view a movie, and gets the copy it views from another source, there must be no contradictory provisions in the stack of licenses—or, the umbrella license must clearly trump the previous license.  This is true whether the institution is using a hard copy or a streaming copy, and regardless of who the physical copy belongs to. 

The member’s question alerts us to this complexity, and the member is right to approach this issue with caution. 

So.  What constitutes “a legally owned copy?”  I wish I had a simple and rock-solid answer, but these days, that can be a tough call.  Reading the fine print on licenses might not be fun,[7] but it is an essential part of answering this type of question, and it needs to be done on a case-by-case basis.  This is why careful planning during procurement, and attention to details when negotiating licenses and services, is critical.

Thanks for a question that pulls the focus to this issue.

[1] “Helpful” in the sense that they inform potential customers as to why they need Swank’s service!  But the “help” is based on reality.

[2] This is a fantasy example.  But they did show her “The Little Mermaid.”  Sigh.

[3] As seen on December 9, 2019 at https://www.apple.com/legal/internet-services/itunes/us/terms.html.  That said, each work can have its own terms, so always read carefully.

[4] But not, perhaps, “contributory infringement” (assisting in infringement by another).

[5] This answer is esoteric enough, so we won’t dive into the further implications of streaming movies under the TEACH Act…but commentary on that can be found in earlier answers.

[6] Always check you umbrella license!

[7] Okay, I’ll admit it: I find reading the fine print fun.

At "Ask the Lawyer," we are frequently amazed at the diversity of the copyright questions we get.  When we started the service, we thought we'd often refer people back to answers that had already been covered.

But librarians always find a way to switch things up!

What are the new variables this time?

"Doors" and "images from movies."

We'll start with "images from movies."

Under the Copyright Act, the owner of the copyright controls the right to display still images from movies.[1] So the member is right to flag this as a possible concern.

But we can potentially rest easy on that point, because educators have some special rights under the Copyright Act--if the material was legally obtained, and if the material is used as part of the curriculum--and "displaying" images from motion pictures is one of them. 

Or, as Congress puts it in Section 110(a) the Copyright Act:

[P]erformance or display of [one legally obtained] work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction [is an exception to infringement].[2]

So, under 110, here is the analysis to answer the member's question:

1. Is the decoration part of "teaching activities?"

2. Did the teacher obtain the copy lawfully? 

If the answer to both is "yes," then the answer is: decorate the heck out of that door.

Having said that, I appreciate that the two factors set out above are not always easy to answer.  Frustratingly, there is no one-size-fits-all definition of either "teaching activities" or "lawful copies."  That said, using some grown-up versions of famous characters from my childhood, here are some examples of the "wrong" and the "right" way.

The wrong way to use 110

Teacher Mr. Goofus[3] does a Google image search for "Elsa," captures a bunch of screenshots from "Frozen," prints out color copies.  He puts them on the outside of the classroom door, together with a sign saying "Let it go, only a few weeks until Winter Break!"

The right way to use 110

Teacher Mr. Gallant uses the copy of the DVD owned by the school library to create a screenshot of the scene where Elsa is discovered to have magical powers.  He puts it on the inside of the classroom door, along with a sign saying: "This month we'll be reading the Scarlett Letter and discussing depictions of overcoming social alienation in popular culture."[4]

What do these examples show?  The more integrated with the course work, and the more legitimate the copy, the more the teacher (and the school) can claim protection under 110. (NOTE: Mr. Gallant could claim protection under "Fair Use."[5])

Which brings me back to the other variable: the door.  For a 110(a) analysis, what side of the door the movie picture is on is (potentially) relevant, since if the content is on the outside of the door, it's slightly harder to claim the material is part of "face-to-face teaching."  That said, if the link to an actual lesson plan is clearly perceptible (like in the "Gallant" example), I think it could work.

And there you have it. 

I have noticed this "door decoration" phenomenon when picking my kids up from school.  My poor children[6] never have a moment that is Harry Potter® or Elsa®-free.

But I get it, images from movies are a way to brighten the environment and get kids engaged.  Fortunately for the teachers of this world, if you follow its formula, Section 110(a) makes it okay.  This is good, since after taking a quick look, we could not find a non-paywall source for such images.[7]

But make sure the use is part of the curriculum!  Thanks for a thoughtful question.

[1] See https://www.law.cornell.edu/uscode/text/17/106, section (5).

[2] See https://www.law.cornell.edu/uscode/text/17/110

[3] Before committing to this example, I checked to see if 1) "Goofus and Gallant" was still "a thing;" and 2) if modern norms of child psychology had decided they were based on any harmful tropes.  Wow, was a fun ten-minute tangent.  As the children's librarians out there already no doubt know, G&G is very much still "a thing."  Further, while a ton of fascinating stuff has been written about their antics (showcased in over a billion issues of "Highlights") they are still alive and illustrating extremes of youthful behavior--having outlived such contemporaries as lead paint, seatbeltless cars, and jarts.  Go, G&G.

[4] This is an appropriate assignment for fourth grade, right?

[5] Which the "Goofus" example would not qualify for.

[6] Am I just jealous?  I tried to remember what was decorating the doors of my elementary school in New Hartford, NY, circa 1982.  I am pretty sure the only decor was the sad remains of the people in "Oregon Trail."  Speaking of harmful tropes…

[7] If you know of one, please alert me at info@stephaniecoleadams.com.

Flying at 10,000 feet, the answer to the first question is: if the class in in person (not online), AND the institution is non-profit, AND the only viewers are the instructor and the students enrolled in the class, AND the viewing is in the classroom or academic facilities, AND the content is part of the curriculum, AND the copy was legally obtained…then the showing is allowed under Section 110(1) of the Copyright Act (“110”).[1]

The answer to the second question is: if use of the precise copy is controlled by a SWANK license, then despite authorization under 110, the showing must be consistent with the terms of that license.  For that matter, the use of any other content service for viewing movies (Netflix, YouTube, etc.) must also conform to the terms of the service’s license.

Swooping a bit lower to the ground (but not into the weeds): exercising rights under 110 is why it is important that: 1) class syllabi show the relationship of materials to the goals of a course, 2) institutions maintain lists of enrolled students, and 3) institutions have designated spaces for instructional activities.

This is why reading the fine print on content licenses is important, since contractual obligations can over-ride rights otherwise granted by law.

How does a school librarian help instructors stay within the bounds of the law or the license?  A good rule for educational institutions is to have clear and pro-active policies and outreach[2] for instructors who need to show movies.  In this world where education gets hit with new laws, regulations, and policies every year, while clear policies are important, a simple message to instructors: “Need to show a movie in class?  Ask us how!” is a great place to start.

[1] Here is the full text of sub-section (1) of 17 U.S. Code Section 110: [Notwithstanding the provisions of section 106, the following are not infringements of copyright:] “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made….”

[2] What’s a sign that your institution’s policy is sufficiently “clear and pro-active?”  Instructors not using their own personal Netflix accounts is Exhibit #1.

I must be very clear: Unless I obtained a written representation signed by an officer of Netflix, I would never advise a corporate client[1] to rely on the Swank umbrella license to show a video from a “personal and non-commercial” Netflix account.

Why is this?  Because the one license does not trump the other.

To illustrate this concern, here is the best analogy of I could come up with[2]: if it’s bow hunting season and I get a bow hunting license, I can bow hunt.  I can commune with nature, test my skills, and if I’m lucky, come home that night and make some venison stew.[3]

But if, while eating my dinner, the police stop by to investigate an allegation that I shoplifted the bow and arrows, they won’t say: “Oh, you have a license?  Sorry, back to your stew.”

The same principle applies here.  A Swank license can definitely allow your institution to watch a covered movie you lawfully obtain.  But the Netflix license quoted by the member does not allow the movie to be shown beyond the account holder’s “household.”  And the language makes it clear the account is for “non-commercial” uses.  In other words: a copy used to further institutional operations was not lawfully obtained. 

Unfortunately, Swank is pretty coy about this concern.  Here is the language from the link provided by the member:[4]

Where can I acquire movies after we receive our license?

You can use movies that are secured from any legal source (DVDs, digital copies or any other legal format). While we cannot speak for other companies, we recommend checking the terms and conditions of any streaming service used to confirm that they do not prohibit public performance.  [emphasis added]

Now, in copyright law, everything is up for debate.  If I put this topic on the table at a gathering of three copyright attorneys, I guarantee you’d get six answers (maybe seven).  And of course, attorneys love it when their clients test the boundaries of the law: it gives us a chance to engage in high-stakes, nuanced, and learnedly arguments—and sometimes, it comes with a paycheck.

But one thing most attorneys in the business world respect is risk.  There is a risk that Netflix[5] could view the use as unauthorized.  And I stated above, unless there is rock-solid assurance from the vendor (in this case, Netflix) that it is authorized, use of a personal Netflix account for an institutional purpose is just too risky. 

How does this play out in the real world?  Large services like Netflix look for “teachable moments,” to bring lawsuits.  They send out private investigators, track IP addresses, and look for evidence of broad misuse.  Once they gather the evidence, they select a victim, and sue[6] (although in the case of Neflix, Section 7 of the License allows for them to resolve the matter via private arbitration).

What is the protection against that?  An institutional policy that bars use of personal accounts for professional purposes. 

There are some approaches to this educational dilemma that do pass my “sniff test.”  Some colleges encourage students to get Netflix accounts if they are taking a film class, so they can watch movies at home.  Near as I can see, unless Netflix starts putting some new “not for class” terms in its license, this is okay (but does not extend to the entire class using one student’s account…unless they are all in the same household).  

Similarly, if a history teacher wants to use their Netflix account to view “13,” at home, even if it is to prepare for a lecture or a discussion of the film in class the next day, that strikes me as a “personal” use.  But if their institution asked them to do it, or they wanted to use their account to watch the movie in class, that would not be allowed.[7]

I wish I could give the member clever answer informed by Fair Use, or coming up with some special rule that applies to libraries.  But licensing is a creature of contract, and if you accept the terms, they will generally govern.

So, just like this member, read those licenses carefully!

[1] I know it sounds rather cold, but in liability-land, schools are “corporations.”

[2] You should see the analogies I left on the cutting-room floor!  My favorite involved a building permit and pirated architectural plans.

[3] I do not bow hunt, but if I hunted at all, that is how I’d do it.  I have a friend who bow hunts; she is like Wonder Woman, but with white hair a much more practical gear.

[4] As of December 18, 2019 (I took a screen shot).  We’ll see if it’s there in a year or so.  I’m such a media influencer, maybe once Swank hears about me calling them “coy,” they’ll switch it up!

[5] As discussed in other columns, Netflix does have an “educational use” license for some documentaries. Their instructions to see if a movie is available that way is here: https://help.netflix.com/en/node/57695

[6] ASCAP, BMI, RIAA, MPAA, and DirectTV were the pioneers of this tactic. 

[7] I would like to thank Jim Belair (who gave me permission to credit him here) at Monroe 2 Orleans BOCES for a great discussion on the implications of this issue for New York public schools.  Most institutions don’t invest in DVD players anymore, which means that streaming is the way the access content.  But if the streaming service isn’t in the name of school (just the teacher or the administrator) use by the school risks violating their license.

A tricked-out, decoupaged book cart [1] sounds awesome (especially if it comes with free books).  A commitment to honoring copyright is awesome, too.  And it is entirely possible to do both.

How?

In the spirit of the educational environment that spawned this question, here is an "Assignment" to teach the students about copyright while designing a book cart that celebrates the works it will distribute:

Part 1.  Pick at least five [2] books with covers or illustrations that are OUT of copyright this year.  For extra credit, look up what year of publication this would be on Cornell's Public Domain Guide [3] (hint: in 2019, this would be anything published before 1924).  Make sure you're working from the date the art was published, not when the text was first published! [4] Copy the covers and decoupage to the cart as needed.

This is the "Public Domain" solution.

Part 2.  Pick at least five books with covers or illustrations that are IN copyright.  Generate your own version of the illustrations with some key details changed: maybe the setting is now your town/city, or the characters look like students and teachers at the school.  Make sure your changes say something about the school or the place where you live, as well as the book.  Write a paragraph about why you made the changes and creative choices you did.  Do not sell your work, and resist posting it online.  Just apply decoupage and let the cart wheel around the school, enlightening and educating people.

This is the "Fair Use," solution. [5]

Part 3.  Pick at least five books related to an assignment for a class that will be offered as free books.  Work with the librarian to obtain a licensed copy of the covers you picked from a service[6], and make sure that as you decoupage the covers, you are within the terms of what is allowed by the license. [7]

This is the "110 Solution." [8]

My grading rubric for this three-part assignment is based on: verifying the publication dates for part one; the thoughtfulness of the paragraph for part two; and the clear application of the license for part 3. 

Ability to demonstrate all three means the cart gets an "A." [9]

Now, this "assignment" encourages maximum use of the legal avenues available for such a project.  Because of that, it is a tad complicated.  But as the member suggests there is a simpler solution: licensing.

The one problem with solely relying on licensed material for a project like this is that you have to very, very careful when you read the license.  Some licenses cover only copies made a specific way.  Others require attribution. Still others say the use must be "non-commercial,"--a term that is always up for debate (academic publishers, for instance, would consider use by a school "commercial," since schools are their main source of commerce).  And finally, licensors also often reserve the right to change the "terms of use" without warning. 

So, if the project depends on a license, make sure you read the terms carefully, print a copy of the license just as it appears when you download the pictures for the project, and plan to make sure the use of the cart stays within the terms of the license.

And with that, whether you decide to go for the copyright trifecta created by the assignment (public domain, fair use, 110), or simply use a license: cart on!

[1] One of my favorite devices in the world is the book cart.  We use them at my law office, where attorneys and paralegals have color-coded carts to tell them apart.

[2] The numbers aren't as important as the ratio, here. 

[3] https://copyright.cornell.edu/publicdomain

[4] For instance, a version of Tom Sawyer that came out in 1980 with new illustrations would have the text in the public domain, but the illustrations--including the cover--would be protected by copyright.

[5] Based on 17 U.S.C. 107: https://www.copyright.gov/title17/92chap1.html#107

[6] Like the one mentioned by the member.

[7] For instance, decoupaging and adding the art to the cart could be considered creating a "derivative work," so make sure that use is not barred by the license.

[8] Based on 17 U.S.C. 110(a), which allows the "display" of ONE graphic work by a not-for-profit, accredited school for purposes of face-to-face instructions (so long as that copy was properly obtained). 

[9] If anyone uses this assignment, please let me know, and please send a picture (which we will NOT put on the internet without your permission). 

To answer the member’s questions, we must start with the fundamentals.

When accepting a donation of culturally significant photos, an archive should have a donor agreement or other documentation that addresses the following things:

Does the donor solely own the physical photos?

Is physical ownership being given to your institution?

Who authored the pictures?  If not a company, what is their name and birthdate?

Does the donor solely own the copyrights?

Is copyright ownership being given to your institution? If not, what permission comes with the physical donation?

May the receiving institution license use by others (a “transferable license”)?

Were the copyrights registered?

Are there any reservations or conditions on this gift?

If donated as part of a will, obtain a copy of the will.

What is the value of the gift? (for tax purposes, if the donor wants to claim a deduction)

Confirming the scope of the donation, the conditions, and value of the gift creates a firm basis for future decisions, including how to address the potential risks of posting pictures of minors.

It is also helpful to get as much additional information as you can at the time of the donation:

To the best of the donor’s ability, what is the date, place, and identity of those in the pictures?  What else of significance is being depicted?

What type of equipment was used to product the images?

Why were the images gathered?

Who collected the images?

Why is this collection significant; why should it be preserved and made available to the public?

Why does this collection fit into the mission of your institution?

Knowing as much as possible about the provenance and purpose of a collection makes it easier to access the protections built into the law for journalism and scholarship.  And with that background, it is easier to assess the risks when the collection involves human subjects.[1]

Those risks include:

Will this content be used by the institution in a way that violates New York’s bar on use of names and likenesses for commercial use? [2]

Are there any ethical considerations that bar including these images in the collection?

Is this depicting any personal health information?

Are there special sensitivities we must consider and plan for?[3]

Will the names of those depicted be included in the metadata of the digital archive?  If so, why is that necessary?

When it comes to minors (those under 18), additional risks are:

Will this reveal a minor’s youthful offender status?

Will this reveal participation in the social services system?

Does this depict an illegal act?

If the answer to any of the last eight questions is “yes,” a consultation with a lawyer, and perhaps an an image-by-image review, may be warranted.  But while that may time time and resources, it may be worth it, since there still may be a way to digitize the photos and make them available via the internet…especially if they have sentimental, cultural, historical and academic value to our region and beyond.

[1] At an academic institution, if the images depict human subjects (of any age) consult the Institutional Review Board (“IRB”).  Depending on how you design your project, it could be important.

[2] Here is the actual text of the law: “§  50.  Right  of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the  name,  portrait or  picture  of  any  living  person  without  having first obtained the written consent of such person, or if a minor of his or  her  parent  or guardian, is guilty of a misdemeanor.”

[3] Depictions of exploitation, enslavement, abuse, or images that could be considered an “illegal sex act” (as defined by §130 the penal law) for instance.  From the sound of it, that is not the case here, but at “Ask the Lawyer!” we try to be thorough.

One of the reasons I enjoy doing “Ask the Lawyer,” is the diversity of questions, and the often esoteric subjects I get to research as a result.  This question is a prime example.

While the liability for copying copyright-protected yearbook photos is, in theory, the same as copying any other published, commercially-generated or amateur picture, I always like to check and see if the specific circumstances in the question have some directly on-point case law. So when this question came through the pipeline, I hit Lexis-Nexis® to search for cases of “yearbook infringement.”[1]

Well.  I found:

• A first amendment case involving a high school senior suing to include a statement describing a state-sanctioned execution on her yearbook page[2];
• A copyright case involving a person who laboriously compiled yearbook photos of famous graduates from a variety of New York City high schools, only to find his work replicated by another publisher[3]; and
• A truly horrific case involving a prank, jail time, and a photo of a person’s genitalia making it into the yearbook[4].

What I didn’t find was a string of case law based on simple copying of yearbook photos for non-scholarly or non-journalistic reasons, like promoting reunions, which is the nuance posed in the member’s question.  But I suspect that is because when a claim based on such an action is threatened, if it has any teeth, it is quickly settled.  Insurance carriers do not like litigation.

So, when your library gets a request for a might-still-be-protected yearbook photo, does it mean the request must be denied?  No.  Remember, if the use is non-commercial, and the other criteria are met, libraries can make copies under Copyright Act Section 108.  Further, Under Section 107, patrons can make the copies themselves, and can claim fair use.  But like with all things copyright, the devil is in the details.  It all depends on the basis for the request, and the amount of content used.

Where must we draw the line?  Somewhere between these two examples:

Example #1: A patron has requested the library copy a yearbook pages featuring Timothy McVeigh for use in coverage related to the Oklahoma City bombing.  That person could get both a 108 copy, and a copy under fair use.  This is especially true if the image selected actually showed it was from the yearbook, and was included as part of an essay, book, or documentary exploring the roots and reasons for the actions of a domestic terrorist. 

Example #2: A patron has requested the library make copies of the individual photos of 100 less notorious graduates to promote Starpoint High School’s Class of ’86 reunion on Classmates.com.  That request would not have that same protection at Example #1.  If the original photographer or their heir could show it was an infringement, they could claim damages (even if the photo’s copyright wasn’t registered), and the library could find itself without a defense.

So how does a librarian deal with this type of request?  As always, help the patron get access to the information they need, but protect the library.  If the request is in person, once they have been given access to the book, your job is done (don’t help them with the copy machine).  If the request is remote or inter-library, and you know they plan a purely commercial use, you can’t make that copy.  This might be perceived as harsh—the requester is probably just a volunteer trying to organize a simple good time! –but you can let them know that the request they made exceeds your authority[5]. 

Bear in mind, it’s 2018. If they access or check out the yearbook and take pictures with their phone without your assistance, that is not something the library can control, nor be held responsible for. The patron themselves might have liability, but your institution will not…unless your library is part of the school organizing the reunion, in which case… seek back-up!

Please note: this highly restrictive answer has nothing to do with the fact that somewhere in the Town of New Hartford, NY, there is a picture of me in a Def Leppard t-shirt with 80’s hair.

[1] This is not a paid commercial endorsement of Lexis.  It’s just the service I use.  But for the record, I have preferred it since law school, where “Lexis or Westlaw?” is the equivalent of “Coke or Pepsi?”

[2] Stanton v. Brunswick School Dep’t, 577 F. Supp. 1560 (January 23, 1984). She won!

[3] Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309 (June 4, 1999).  He lost!  (Not enough original content in his work). 

[4] Granger v. Klein, 197 F. Supp. 2d 851 (March 29, 2002).  Josten’s got an early dismissal of most of the claims. 

[5] Unless you are a member of Congress and can introduce legislation to change the Copyright Act.

The answer to all of the questions is: Yes, buying an MP3 audiobook on CD, copying it, and putting the copy on a drive accessible to others, unless the CD’s license authorizes it, would be copyright infringement [1].  

An audiobook’s license is what that defines the permission a user has to copy the file.  A typical license for an audiobook contains something like this:

When you purchase [Vendor] Content, [Vendor] grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such [Vendor] Content to your computer and/or other device(s) solely for your personal, non-commercial use. You agree to not otherwise copy, reproduce, distribute or use the [Vendor] Content other than as expressly set forth herein. You will not sell, transfer, lease, modify, distribute or publicly perform the [Vendor] Content in any manner and you will not exploit it commercially. ”[2]

Some licenses do allow transfer of audio books onto multiple devices, and some may even provide for one person to transfer the MP3 to another; the permutations are only limited by the soft and hardware containing the copies, and the business plans of the publisher.

Which brings me back to the member’s question.  In the scenario presented, it is not quite clear if “transferable” (as used on the cover of a CD) means transferable between devices, or between owners; only by checking the actual licensing information on the product would you be able to determine that.  

It is rare for the owner of an audiobook to simply offer limitless transferability, but the fine print, not the cover, is where you’ll find out for sure.  And that is the dynamics (a good word for something as in flux and digital rights management)!

[1] Unless the recording is in the public domain, the conversion is for ADA accessibility purposes, if the use is a “Fair Use,” or some of the other very narrow exemptions apply.  But we’ll just focus on conventional, copyright-protected audiobooks that a publisher is selling for money.

[2] The mystery is killing you, right? This is an excerpt from the Audible license.

The Public Domain…intellectual property’s frontier.   These are the adventures of those working with no copyright.  Their mission: to use pre-existing content, to explore not being sued for infringement, to boldly go where no legal protection has gone before..!

[Insert inspiring theme music here!]

Sigh.  If only this question was as simple as putting on a spandex unitard and exploring the galaxy.  Unfortunately, it isn’t, and there is no one hard and fast rule for assessing if something is in the PD (Public Domain), and thus available for use without licensing, permission, or any concern about copyright.

So what do you do if you want to work with material you think might be in the PD?  You have to analyze it.

A work has several ways of getting into the PD[1]:

1.  It lacks sufficient original authorship to have ever qualified for copyright protection.  Example: a simple, non-descriptive list of characters in a play.

2.  It qualified for copyright but was never protected.  Example: a play published in the US in 1957 without a copyright notice.

3.  It was once protected, but the protection expired.  Example: a play published in 1988 without a copyright notice, and without subsequent registration within 5 years.

All three of these can be tough to assess. There is, however, a great chart maintained by Cornell, that enables some determination related to #2 and #3.

https://copyright.cornell.edu/publicdomain

Do you need to assess if something is in the Public Domain?  Check out the chart.  With the right information about a work (the author/owner, date of publication, and circumstances of publication) it can be used to determine if a work is in the Public Domain.  But take care!  When working with the chart, make sure you verify every relevant variable.  Have someone knowledgeable, or an attorney, double-check your conclusion.

Once you’ve done that, you can voyage to the undiscovered territory, secure in the knowledge that no one can sue you for infringement (based on copyright).

[1] “The public domain” should not be confused with “copyleft” practices such as Creative Commons licenses, or “Open Source” agreements that authorize use under very light restrictions; such licensing is still based on the underlying property having a protectable copyright.