Photocopies

This question seems simple, but it actually involves some high-end concepts of business law and liability.[1]

Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity.  In other words, although they may have a distinct identity within their institution (“The Michael  Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).

Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop.  This means that what the shop does, the entity does…including alleged infringement.[2]

This same unity generally applies to employees, too.  In a body of law called “Master and Servant,”[3] if an employee is performing a task related to their job, and not deliberately violating employer policy or the law,  for purposes of the legal system, the employee’s actions will generally[4] be imputed to the institution. 

This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts[5] to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).

This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities?  Do they need to educate their co-workers on copyright risk?  Are they expected to protect the entire college?  Each institution has different policies and job descriptions that answer those questions differently.

That said, is there a simple approach that can help with this?  Yes.  For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness.  It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution[6]. 

NOTE:  All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual.  Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability!  If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution. 

[INSTITUTION NAME] COPY SHOP COPYRIGHT HELPER

Hello!  Thank you for coming to the [INSTITUTION NAME] copy shop to arrange duplication of your class materials.

As an instructor who generates your own copyright-protected material, you know the value of copyrights to others, and you know there are penalties for improper, unauthorized duplication.

Please follow the process below.  When you check “yes” to 1 or 3, we are happy to assist you with your copies!

1. Do you have written permission from the copyright holder or their agent to make copies?

• Yes
• No

If “yes,” attach the permission, and let’s get copying!

If “no,” please move to question 2.

2.  Do you have verbal permission from the copyright holder or their agent to make copies?

• Yes
• No

If “yes,” please confirm the permission in writing, return to us and check “yes,” above, and we’ll get right on this for you!

If “no,” please move to question 3.

3.  Do you regard this copy as a fair use?

• Yes
• No

If “yes,” please fill out the attached [INSTITUTION NAME] fair use assessment form, and we’ll get your copies made!

If “no,” or “I don’t know,” please move to question #4.

4.  Do you find this process frustrating and need help arranging permission to use this material, or more input on fair use?

• Yes
• No

If “yes,” please see XXXX at OFFICE LOCATION, who assists with permissions at INSTITUTION NAME.  You can also call them at NUMBER or reach them at EMAIL.  We hope to see you again soon!

DATE:___________________________

SIGNATURE:___________________________

PRINT NAME:______________________________

MATERIALS (Title, number of pages):_______________________________

[1] Fun!

[2] This is one of the reasons many institutions opt to host a separate company for on-campus duplication services.

[3] I know!  The law needs to move on.  Perhaps “Captain” and “team member” can replace this.

[4] That said, never assume that is the case!  Every allegation of liability must be carefully reviewed by a lawyer, as there are many exceptions and precise formulas that control such things.

[5] Demonstrable, good-faith effort to abide by the law can actually limit damages when copyright infringement is attributable to a not-for-profit education institution.

[6] If you don’t have either or one of these, share this RAQ with the decision-maker at your institution who could make that happen.  Both the form, and a person who can facilitate permissions, are worthwhile risk management investments.

It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies. 

Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.

And yet, class must go on.  We tried to ask…now can we just make those copies?

Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement.   Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use). 

Of course, there are some exceptions to this rule.  If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated.  And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use).  But copies for students, whether or not they are sold, do not fall into these categories.

The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner.  This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources. 

And sometimes, even after a herculean effort, the answer cannot be found.  But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.

One of my all-time favorite TV shows is Gilmore Girls.

Aside from being the origin of many expressive phrases ("Oi with the poodles already!"), as a parent, Gilmore Girls gave me a concept I used almost daily: "jam hands."

What is the origin of "jam hands"?  In Season 2, Episode 5, “Nick & Nora/Sid & Nancy”, the perpetually grumpy "Luke" character, upon being confronted with the prospect of childcare, confesses to a distaste for children: because they are loud, because they are messy, and because their hands always seem to be coated in jam.[1]

I have two kids.  "Jam hands" are very real.

My oldest kid (15, as of this writing) has paid his dues playing violin and piano, so I have personally witnessed the damage "jam hands" can do to instruments and music.  It must be jam warfare out there.

And of course, a kid can lose sheet music simply by putting it in their backpack.[2]

I don't know if “jam hands” and possible “backpack black hole” are the big reasons for this member wanting to give students back-up copies while retaining the "real" ones in a file, but I suspect that is at least part of the rationale.  Why wait until the good copies get destroyed or go missing?  Why not make back-up copies in advance?  If "fair use" creates educational exemptions to infringement, isn't this a use that qualifies?

Sadly, when Congress developed the "fair use guidelines" for educators,[3] they did not invite any parents to the advisory committee, and so the "jam hands" and "backpack black hole" clauses did not make it into the final guidelines.  Instead, those guidelines specifically prohibit copying for performance, except for:

Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

So: no copying in advance…but, in the face of an "imminent performance," copying to replace "unavailable" purchased copies is okay (provided the replacement copies are "substituted in due course").

What does this tell us?  In this case, it's better to be re-active, than pro-active.  When a student jams up or black holes a copy, an educator can make replacement for a performance.  Just make sure you get around to purchasing and substituting (instead of destroying) those "replacement copies," in "due course."

I would of course love to leave this answer right there, having dispatched sage wisdom and quoted from decades-old guidance from Congress.  But I have no doubt that by now, at least one reader has said "Well, what's 'due course'?" And I don't want to be accused of fraternizing with the tomato.[4]

A lot has changed since the guidelines I quote above were drafted.[5]  Inspired by this question, I took a look at the sheet music market, to see if the landscape for fair use had shifted.[6]

As I am sure any music teacher reading this knows (but what was news to me), these days teachers can often print sheet music on demand (for a price).  And while of course not every copy a school has in print is available for download, the "emergency" aspect of the clause quoted above loses some heft when a copy can be obtained for $2.25 online.

THAT SAID, I know music program budgets rise and fall on nickels and dimes. I am not suggesting that a teacher or librarian solve this problem by simply immediately buying new copies; rather that when it comes to deciding what amount of time is "due course," the answer is: no later than when you can make the replacement purchase as part of your next budget cycle.

That said, before stressing about fair use and "replacement copies" and "due course," always check the fine print on the music (and on copies available from other sources).  While on my sheet music web site tour, I noted that some (but not all) of the sheet music I saw for sale had the phrase "this copy may be reproduced by the purchaser," and other flexible licenses.  So, for each piece of music you want to copy, before you worry, check the fine print.  You might have more permission than you think.

I wish I could give a better answer in the fight against “jam hands.”  But at least your answer didn’t fall into a “backpack black hole!”

[1] The full quote is here: https://www.tvfanatic.com/quotes/me-raising-a-kid-i-dont-even-like-kids-theyre-always-sticky/

[2] Don't watch your kid do this.  It's addictive.

[3] Set forth in the Copyright Office's "Circular 21," which is found here: https://www.copyright.gov/circs/circ21.pdf

[4] Another beloved Gilmore Girls reference

[5] For instance, Gerald Ford is no longer President.

[6] I particularly appreciated the functionality of https://www.jwpepper.com/sheet-music/welcome.jsp.  As a non-musician, I am not qualified to comment on their selection or quality.

A “Path Through Learning!”  This sounds like a really cool idea. 

The member is right, though: to put this cool idea into effect as described, a library would need the permission of the copyright holder.

It’s hard to believe, but liability is just a rip and a lamination away.

Why is that? 

Although the “first sale” doctrine allows the purchaser of a book to resell and display the book—and even to make creative book arrangements in display cases and front windows--it is not a defense to cutting images from the book and re-mounting or laminating them. 

This is because courts have found that re-mounting or laminating covers or pages torn from a magazine or book creates a “derivative work” that is an infringement of copyright. [1]

“Derivative works,” are works that incorporate, “recast, transform, or adapt” part or all of a “pre-existing work,” without meeting the element of a “fair use” defense, or transforming what they’ve borrowed to the point where the original can’t be discerned.

Of course, an essential element of a derivative work is the “pre-existing work…” meaning, the work in its recognizable and copyright-protected form.  If I pulped my comic book collection and made a piñata out of it, that would not be a derivative work[2].  But sequels, adaptations, companion materials, and, yes, laminations, can run afoul of this right held by a copyright holder.

How do sellers of mounted, and perhaps laminated baseball cards do what they do?  Since nothing has been ripped or separated, there is insufficient “transformation” to make it a derivative work.[3]

So where does that leave the “Path Through Learning” concept?  Although it would have an educational purpose, based on the case law I found, a copyright owner could have a viable claim for an unauthorized “derivative work” being used to illustrate the path.  Further, unless there was some intrinsic commentary or criticism of the works selected, a fair use defense would be weak to non-existent. So as proposed, it is risky indeed, and the member is right to be concerned.

The good news is that I have two solutions.

First, based on the case law, protecting (via lamination, display box, treasure chest, etc.) and displaying entire copies of the books, with the pages open to a certain spot, could be an allowable display.  Just make sure they aren’t being marked or altered.

Second (and probably best): ask for permission.  The “Path Through Learning”[4] is a charming idea. I bet many authors and publishers would be delighted to give permission.  After all, you’re promoting their book!  Simply reach out, describe the project, and ask the rights holder if you can create the separately laminated pages for it.  It can’t hurt to ask, and they might say yes.  Of course, when they do, get the permission confirmed in writing.

Thank you for this interesting question.

I first heard about “ResearchGate” at a copyright training I was conducting for librarians. 

There I was, holding forth about Section 108 and Fair Use, when out of the blue, an academic librarian asked me: “What do you think of Researchgate?”[1]

This question triggered my number one rule for lawyering: never assume you know an answer; always do your research.  So even though my brain figured that “Researchgate” was a new scandal involving falsification of data,[2] I instead replied: “I have to admit, I am not familiar with that.” 

Good thing I followed rule number one!

Since that time, and in response to this question, I have had a chance to visit ResearchGate’s “About” page and their “Terms of Use” (for academics and students) page.  And I have developed some thoughts.

But first, here’s what I have learned:

Notably, as the member points out, ResearchGate’s “Terms” for submitters reinforces the rights of authors:

As a member, when you post full-text articles or supplementary materials on ResearchGate, you do not transfer or assign copyright to us. Rather, you make the content available to the public through ResearchGate.

…about encourages users to respect the rights of others:

If you choose to privately archive or publicly post content, we encourage you to first confirm your rights before doing so. … As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. 

ResearchGate’s relationship with users is also governed by clauses on “Liability” and “Indemnification”—with ResearchGate attempting to pass all liability for a copyright infringement onto the users who supply content.

And finally, as also shown in their policies, ResearchGate also takes advantage of the “notice and takedown” provisions under the Digital Millennium Copyright Act to assure itself “safe harbor,” in the event a user posts infringing content.[3]

What I found at ResearchGate.com was what looks like a thorough attempt to dot all the “i”s and cross all the “t”s to respect intellectual property.  They probably have a very good lawyer.

But as I said, “always do your research,” so in addition to visiting their site, I also visited PACER to see if ResearchGate is being sued by anyone for copyright infringement.  And boy, are they ever.

ResearchGate GmbH (its corporate name in Germany, where it appears to be based) is being sued by Elsevier, Inc., Elsevier Ltd., Elsevier B.V. and the American Chemical Society (“ACS”).[4]  The basis for the suit, as set forth in paragraph “three” of the plaintiff’s complaint, is the ResearchGate’s use of “Published Journal Articles” (which the suit calls “PJA”s):

This lawsuit focuses on ResearchGate’s intentional misconduct vis-à-vis its online file-sharing / download service, where the dissemination of unauthorized copies of PJAs constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other journal publishers. The lawsuit is not about researchers and scientists collaborating; asking and answering questions; promoting themselves, their projects, or their findings; or sharing research findings, raw data, or pre-prints of articles.

And, just in case that doesn’t sound too bad, here’s the next paragraph:

ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing copies to grow the traffic to its website, its base of registered users, its digital content, and its revenues and investment from venture capital. ResearchGate knows that the PJAs at issue cannot be lawfully uploaded to and downloaded from the RG Website. Nevertheless, in violation of the rights of ACS, Elsevier, and others, ResearchGate uploads infringing copies of PJAs and encourages and induces others to do so. ResearchGate finds copies of the PJAs on the Internet and uploads them to computer servers it owns or controls. In addition, ResearchGate lures others into uploading copies of the PJAs, including by directly asking them to do so, encouraging use of a “request full-text” feature, and misleadingly promoting the concept of “selfarchiving.”[sic]  ResearchGate is well aware that, as a result, it has turned the RG Website into a focal point for massive copyright infringement.[5]

Yikes, that sounds dire, right?  And very akin to the member’s concerns.

So, with all that established, I’ll share my thoughts, and address the member’s questions.

Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons?

Questions like this may be informed by law (and risk management), but must always start with ethics. 

The ALA Statement of Ethics[6] has very clear language regarding intellectual property: We respect intellectual property rights and advocate balance between the interests of information users and rights holders.

When it comes to a source like ResearchGate—ostensibly trying to operate within the bounds of the law, but alleged to have a seamier side—the ALA’s further musings[7] on this statement on copyright are also instructive:

Library workers are increasingly critical resources for copyright information in their communities. Consequently, they should be informed about copyright developments and maintain current awareness of all copyright issues. Library workers should develop a solid understanding of the law, its purpose, and the details relevant to library activities. This includes the ability to read, understand, and analyze various copyright scenarios, including fair use and other copyright limitations, using both good judgment and risk mitigation practices.

Library workers should use these skills to identify their rights and the rights of their users. Further, they should be ready to perform outreach surrounding copyright topics and refer users with questions pertaining to copyright to reliable resources. However, library workers should avoid providing legal advice. They may provide information about the law and copyright, but should recommend that patrons consult an attorney for legal advice. [emphasis added]

I can’t answer the member’s questions for any particular library. But based on the ALA Statement of Ethics, its further comments on copyright, and risk management principles drawn from the law, I can suggest a methodology for a library to apply when asking them.

First, if a librarian, using their own observations, and applying ALA ethics, believes a source to be dubious,  it is clear that they are ethically obligated to “us[e] both good judgment and risk mitigation practices” about “relevant to library activities,” and to work with decision-makers at their institution to develop a clear position on that source.

This is not a simple nor easy exercise.  Further (and frustratingly, for some) it may vary from institution to institution.  Some libraries dance on the cutting edge of copyright.  Others err on the side of caution.  The decision to do either should be based on an informed assessment that considers the library’s mission, insurance, tolerance of risk, and its comfort level with the status quo.  

The member is already applying personal experience and modeling this balancing.  Remember the last part of the question: I am personally very hesitant to refer anyone to ResearchGate, as I find most faculty researchers are not aware of who truly holds the copyright to their published articles.

To that type of informed concern, there are two considerations I would add for libraries making this type of determination:

1) Under Section 108 of the Copyright Act, a library’s exemption from infringement can turn on their lack of awareness of a scheme to make exploitive commercial copies.  Your library’s insurance may also deny coverage if a library is knowingly referring users to an infringer.  So, if your institution is aware that a source is an infringer (which is different from suspecting a source is an infringer), that is a factor to balance.

2) On the flip side, libraries should not be willing (and generally have not been willing) to roll over to support the unchecked dominance of traditional commercial publishers.  Without pushback, rates will continue to go up, while terms will get more onerous.   But there is a difference between thoughtful pushback (like the current, organized fight against the McMillan Embargo[8]), and systematic copyright infringement (like Napster).  

Questions like this one show that librarians are thinking about the difference.  

Thanks for a great question.  It will be interesting to see if the case against ResearchGate goes the distance, and to see libraries decide where they stand.

[1] When this question first put the name in my brain, the “g” was lowercase.  

[2] For over ten years, I was in-house counsel at a university, and had a reason to read “The Chronicle of Higher Education,” every week.  Every year the Chronicle reported on one research-based scandal after another; it’s a miracle I didn’t hear the term “ResearchGate” before this!

[3] As of December 8, 2019, you can see this on ResearchGate’s Intellectual Property Policy.

[4] Am. Chem. Soc'y v. ResearchGate GmbH, 2019 U.S. Dist. LEXIS 98372, 2019 WL 2450976.

[5] Yes, this is one monster paragraph within the law suit. 

[6] As of December 8, 2019, found at http://www.ala.org/tools/ethics

[7] http://www.ala.org/tools/ethics/copyright

[8] http://www.ala.org/news/press-releases/2019/09/ala-launches-national-campaign-against-e-book-embargo

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.

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.

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.

Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?

The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.

How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?

This is where things get interesting.

First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).

This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.[1]

Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.

Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.[2] But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).

The answer to a question like this is almost always in the specific license from the publisher.[3] Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.

[1] My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!

[2] The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!

[3] Something our member suggested, when posing the scenario. WNYLRC has savvy members.

You are not wrong in your thinking.  You are protecting your institution.   Further, by educating your faculty, you are helping them educate students.

That said, you are up against a tough issue.  It is one of the strongest copyright myths out there: the strident belief that if a copy is for educational and/or a not-for-profit use, it can’t be an infringement. [1]

Of course, all myths come from somewhere, and the origin of this one is easy to pinpoint: Fair Use—an exemption from infringement—considers educational and commercial factors. 

But librarians and other information professionals know that Fair Use involves additional factors, and requires case-by-case analysis.   To Illustrate this (and helping faculty), many larger higher education institutions maintain excellent, easy-to-use guides. 

Here are some of the better ones I couldn’t presume to improve upon:

NYU

Columbia

Stanford

Harvard

Given the wealth of excellent material out there already, I have nothing new to add, unless you would find posting this short, punchy bit of doggerel helpful:

When it comes to coursepacks, here’s the rule:

Copyright applies in school.

Sure, not-for-profit education

Can help a “Fair Use” designation,

But articles, books, and chapters used

Without a license can get us sued.

Ten percent is no sure guide…

Fair Use factors slip and slide!

So if the work’s not satirized,

Nor juxtaposed, nor criticized--

But copied just to help them learn--

Then I’m afraid we must be stern.

Don’t become some lawyer’s mission!

Let us help you get permission.

(After all…

If someone used your dissertation,

Perhaps you’d want some compensation?)

You have a license from me to post this, if it will help.  Sometimes a short couplet can succeed where charts and paragraphs fail (but maybe leave off that last part). 

I wish you a strong heart, and much support, as you protect and guide your institution.

Comments and shaky poetry © Stephanie Adams (2017)

https://creativecommons.org/licenses/by-nc-sa/4.0/

[1] This is unfortunate, because Fair Use does offer a great deal of protection to academia, as can be seen in the recent case https://www.copyright.gov/fair-use/summaries/cambridgeuniv-becker-11thcir2016.pdf.  But it is not a simple or over-arching protection!