Social Media

Movie covers on Facebook

Submission Date

Wednesday, January 27, 2021

Question

I've seen libraries take pictures of book covers and promote them on their library social media page, and was wondering if the same policy holds for movies. Can we take a picture of the front covers our new DVDs and promote them on Facebook? Or is it preferred that patrons browse our new DVDs in the library and/or on our library catalog?

Even though we purchased a movie license, I do know that due to copyright laws, we are not allowed to promote on social media any movies that we are showing at the library. Patrons are asked to call us and inquire what movie we are showing. Thanks for the help!

Answer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tag

Trademarks and Branding

Fair Use

Movies

Social Media

Posting Patron Images on Facebook; When is an image release required?

Submission Date

Wednesday, August 22, 2018

Question

Are libraries legally required to obtain photo releases from all patrons (children's parents, teens, adults), even if we don't name those patrons before publishing photos to our social media accounts and/or press releases?

Answer

This is a huge question. To answer it, let’s start with where the mania over image releases comes from.

New York Civil Rights Law, §50, states:

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.

In this age where every “click” and post is potentially monetized (and thus “advertising”), this rule is tough to advise on. If I post a picture of my sister on Facebook, and her smiling face helps Facebook get attention for a sidebar advertisement, can she fulfill a threat made back in 1987 to get me in “sooooooooo much trouble?” Not quite. But if I create an ad for an event to be held at my law firm, and I use someone’s image without permission, that could be problematic.

The next layer of concern could come from Facebook itself. As they say in their “Terms,” users may not:

…do or share anything:

That violates these Terms, our Community Standards, and other terms and policies that apply to your use of Facebook.
That is unlawful, misleading, discriminatory or fraudulent.
That infringes or violates someone else's rights.

[emphasis added].

So, if my sister alleges that I have “violated her rights,” by posting her picture, am I risking my Facebook account, too?

A lot of this comes down to how Civil Rights Law §50 is being applied these days. As of this writing, I did not find any case law where simply posting an image to Facebook violated §50. Further, recent case law gives insight into what the courts will consider to be “advertising.”

“Under Court of Appeals precedent, the statute is to be narrowly construed and strictly limited to nonconsensual commercial appropriations of the name, portrait, or picture of a living person. A use for advertising purposes has been defined as a use in, or as part of, an advertisement or solicitation for patronage.” [1]

This sounds helpful, until you starting thinking that, in the world of Facebook, everything is only one degree from being an advertisement. So how does a library post photos of patrons using their library without losing sleep at night?

The 2013 case of Leviston v. Jackson is instructive. In Leviston, a woman sued the rapper 50 Cent for posting a sex tape (not made for commercial use) featuring her on his unmonetized web site. During his testimony, 50 Cent stated that he posted the video to antagonize an opponent in a rap war. During his testimony, 50 Cent admitted that rap wars are conducted in part to test the mettle of different rappers, and to bring attention to the combatants. The judge, seizing on this admission that rap wars are in part for “attention” (of the commercial variety) refused to dismiss the Plaintiff’s claim.

So, if your public library is at war with the association library across town, or fighting a budget battle, and you would like to post pictures of patrons claiming “Our Books Our Bigger!” your library should get written image releases. If, however, your not-for-profit library is simply publicizing “new hours!”, the person whose image you use would have a very weak claim (if they had a claim at all).

That said, in general, it is a good practice for libraries to get image releases whenever possible. First, you never know when you might snap the perfect picture to illustrate why a new resources or a bigger budget would really help your mission. Second, asking for permission to use a person’s image will emphasize your library’s respect for personal privacy and patron confidentiality. And finally, by memorializing permission to use an image, you reinforce the patron’s connection to the library…and generate a great record for the archivist who will be trying to catalog your photos in 2118!

Thank you for your question.

[1] Leviston v. Jackson.

Tag

Trademarks and Branding

Online Story Time and Copyright

Submission Date

Monday, March 11, 2019

Question

[The member provided a link to a story about an elementary school principal putting on her pajamas and using “Facebook Live” to read her scholars a weekly bedtime story.]

I always love ideas like this but am afraid to promote them because I have heard that this is a copyright violation. Is it? If it is, what are our options to do something like it in a legal and ethical way? Thank you!

Answer

Reading to kids is one of the best thing we can do for them. If the law gets in the way of that, there is something wrong with the law!

That said, honoring the rights of authors and illustrators who create stories to charm and educate is one of the best ways we can make sure there is always something new to read.

And it’s the law.

The member’s concern is justified; copyright law rewards creativity by empowering rights holders to control how and when their work is duplicated--in this case, “performed”[1]. A reading on “Facebook Live”—no matter how many cute, be-jammied scholars it enriches—could infringe those rights[2].

But as the member also suggests, respecting copyright does not need to be the end of the line; there are many ways this type of real-time, remote reading can take place.

Below, please find my “Top 5 Ways for a Teacher to Remotely Read a Bedtime Story to Lots of Kids in Different Places Without Fear of Committing Copyright Infringement.”

1. When choosing a book to read, select a work in the “public domain”…meaning, the book is no longer protected by copyright. As of 2019, this means works published before 1924 (in the U.S.) and other select situations.[3]

For example, the “Brothers Grimm” who were writing in the 1800’s, are not suing anymore (nor are their heirs). Just make sure the publisher hasn’t found a new way to assert the copyright of the copy you read from (a new version, new illustrations and layout, a slightly less sadistic version of the original, etc).

2. Write your own story.

This one is my favorite. Who knows? You might discover you’re the next Eric Carle!

3. Hold a writing contest amongst the students that includes parental permission to read the entries/winners online.

This could also bolster interest in the event, since kids could hear their own work read, and see their own pictures online.

4. Explore making the reading exempt under the TEACH Act (section 110 (2) of the Copyright Act).

The TEACH Act exempts certain digital transmissions of work from the classroom environment. It has several highly specific requirements, so educators should connect with their institution’s attorney and IT department to see if this option can work for them. While not the solution for every “good night” reading, with some planning, it could be a way to make online reading sessions a part of a routine curriculum.

And finally…

5. Explore getting permission from the rights holder! While not all authors will be in a position to agree, many will say “Yes, of course!” when asked if a teacher can livestream a reading of their book (of course, if you also want to show their book as well as read it, you will need permission from the illustrator, too).

Reaching out to an author or publisher takes time, but many children’s authors are very accessible. My high school friend, Grace Lin, is a well-known children’s book author (and recent winner of a Caldecott Honor for “A Big Mooncake for Little Star”). I reached out to Grace on Facebook to get her take on this issue (and got her permission to share her thoughts).

For Grace, whose work contains lovely and carefully rendered illustrations, such a request would be about intent and quality. She said if the reading was more about the not-for-profit reader and audience connecting over her story, and not the video dwelling on the pages (effectively copying them), she would consider giving permission. On the flip side, Grace felt that serious duplication (with the video dwelling on the pages) could be an unwelcome duplication.

Like many children’s book authors, Grace is accessible via her website, www.gracelin.com, and I encourage would be night-time-story-readers to reach out to her!

Thank you for this great question. Copyright is an important law to honor in the educational environment. But finding ways—lots of ways—to give children an early and deep love of books is an even greater service to the world. It’s one of the reasons librarians are so important.

[1] There are six distinct rights given by a copyright: reproduction, , derivative works, distribution, performance, display, and (for sound recordings) digital transmission. You can see the full list here: https://codes.findlaw.com/us/title-17-copyrights/17-usc-sect-106.html

[2] Small note: the reason books can be read aloud in class (from k—grad school) without fear of infringement is because of an exception in Section 110 (1) of the Copyright Act. My solution in number “5,” above, is based on this exception.

[3] How can you tell if a work is in the public domain? One of the great treasures of the universe, a chart for determining public domain availability, is maintained by Cornell University at: https://copyright.cornell.edu/publicdomain.

Tag

Copyright Liability For Programs Using Audio/Video Recordings

Submission Date

Wednesday, October 31, 2018

Question

Does our library incur any liability when a program presenter uses our facility and presents a program at our behest that includes music, either a previously-issued recording of music not original to the presenter, or a live performance of a piece of music composed by a person who is not the presenter? What about a presenter who just contracts to use the venue, without library sponsorship of the program? What about the capture of such a performance and our streaming it or recording it for later posting on our website or broadcasting it on our community television as a public service? If so, what is the best way to protect ourselves?

Answer

This is a huge question!

I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.

But I will limit this reply to 5 answers I think are most helpful to the average library:

Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter. In a copyright case, everyone who contributed to the infringement is generally named as a defendant. So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.

Answer #2: Yes, there are several things a library can do to protect itself! When it comes to a performance by a third party, the best option is a properly worded contract.

For any use of its facilities, the library should have a stock contract that provides for the following:

1) verification that the performer has all the licenses and permissions it needs to perform;

2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,

3) proof that the user has the right insurance to back up to their indemnification.

The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant? Owner? What type of insurance do you have?).

A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.

Answer #3: That said, there are several types of performance that are exempt from copyright infringement claims. For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance is “without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” and there is no “direct or indirect admission charge.”

In other words: no transmission + no money + no commercial advantage = no problem.

Of course, “commercial advantage” can be a tricky phrase. If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed. When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser?[1] Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.[2]

Further, is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).

That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).

And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party. The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!

Answer #4: If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners. They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.

Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries[3]. But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.[4]

Answer #5: The member’s final question addresses recording a performance at the library, and posting it online.

As the question suggests, this is where you have to be very careful. A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way. Under 17 U.S.C 1101, it could even result in a claim by the performer! So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.

So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance? No. While there may be sociological reasons to do that[5], if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.” Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.

And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go[6]” at the local library? Unless it goes viral, it’s not too likely. But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.

Thanks for the questions!

[1] Maybe they are one of those rock stars that hate libraries. I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.

[2] I am of course kidding about Metallica. Please don’t sue me, Lars!

[3] I checked the PACER database of federal law suits and could not find any cases brought by them against a library.

[4] For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”

[5] I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.

[6] Since I have a 4-year-old, I have this song memorized.

Tag

Library's Facebook Page versus Staff Member's Facebook Page

Submission Date

Wednesday, October 11, 2017

Question

We are struggling with a freedom of expression issue here at our library. When a staff member posts on his/her personal Facebook page something to do with the library, whether positive, negative, or neutral, what rights does the Library have, if any? We need to be able to differentiate the "official" library news, which gets posted by an administrator, from the library news that get posted/shared by a staff member on a personal Facebook account. Are there any legal issues surrounding this situation that we should be aware of as we begin to create our Public Relations policies?

Answer

The lawyer answers…

This is an area that library leadership has to be very careful about. While the laws, regulations, and policies governing library employees vary (based on the type of the library, and the type of institution the library/archive might be part of), there is a growing body of case law ruling that employers may not discipline—or chill—employees’ use of social networking to comment about their work experience.

As but one example, a recent National Relations Board (NLRB) decision [1] barred a company from using the following employee handbook provisions:

Prohibiting the posting of “embarrassing, insulting, demeaning or damaging information” about the employer, its products, customers or employees.
Barring discussion of all information gathered in conversations, emails, and meetings as “confidential and proprietary.”
Prohibiting employees from referencing or citing employer’s members, employees or vendors in social networking without their express consent.
Maintaining a rule in a “Social Networking Guideline” that prohibits the use of the employer’s name, logos or trademark without the employer’s consent.

Although the case cited is from a union environment, the NLRB has claimed jurisdiction for non-union workplaces where federal grant dollars fund operations [2]. And of course, municipal-owned libraries, who might not be subject to NLRB jurisdiction, have to worry about First Amendment concerns—a different but not less critical priority. This well-developed case-law means I can give a very brief, decisive reply to this question:

Policies related to employees’ personal social networking should be finalized with the input of legal counsel, who will help you consider the goals of the policy, to comply with the law. Once developed, such policies should be routinely assessed by your institution’s attorney.

That said, there are obviously many good reasons for a library to have a strong, distinct, and official presence on social networks—and the good news is that this can be accomplished by an approach that is more affirmative than proscriptive. The legal/operational tools of a strong social media presence are:

Well-established library trademarks (name and logo);
A domain name that matches the trademark name, if possible;
Consistent use of those marks for social media sites/posts;
An “official voice” (tone, style) for posts and content;
Selecting and updating the utility used (FB page, Twitter, etc.) to make sure the settings support the tone you want;
A consistent approach to hosting (or not allowing) community dialogue;
Well-established parameters, consistent with the library’s mission, for how and why the page is operated;
A person who has routine maintenance of the social media resources written into their job description or volunteer letter [3] (and, if possible, at least one back-up person);
A strong internal policy, well-communicated to employees, that ties this all together. This policy should not reference personal social media.

By cultivating a strong social media presence, ancillary content by employees and volunteers, on their own personal pages, will be made less confusing. This is a tactic worth considering, because as shown above, restricting employees’ ability to discuss work via social media is fraught with legal risk.

The foresight and caution showed by this question is very wise, indeed!

[1] NLRB Cases 16–CA–107721, 16–CA–120055, and 16–CA–120910 (July 15, 2016)

[2] Hispanics United of Buffalo, Inc. and Carlos Ortiz. Case 03–CA–027872 (December 14, 2012). This case, a seminal decision in this line of case law, shows how these issues arise in day-to-day operations. It is written in plain language and is very instructive on this topic. The board decision can be found here.

[3] If a volunteer does this, checking with your insurance carrier to make sure they are covered for the activity is a smart thing to do!

Tag

Management

Policy

Social Media