School Libraries

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.

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.

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). 

I am writing this on May 23, 2023. 

It has been well over a year since I started working with school district libraries and regional BOCES on the ethics, law, and policy considerations of school library collection concerns.[1]

In that time, I have worked with many on the front lines of this issue, and heard their stories: librarians worried their school's policies aren't up to the challenge, librarians enduring insults and threats, and librarians developing contingency plans for the day when the anger is directed at their school library.

The sessions I have worked on have focused on different ways to be prepared: 

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

The member's question addresses a factor that cuts across every facet of preparation: be ready to play offense. 

To reiterate, the member asks: [Do] school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations[?]

The answer is: YES.

Some of the more possible legal tactics are listed below, along with tips on when a librarian should reach out to their own personal lawyer.

A few disclaimers, and tips for being ready to employ these possible tactics, come next.

Possible Legal Tactics

If a school librarian is wrongly accused of a crime, or of incompetence at their job, that can be grounds for a claim of defamation (slander or libel, depending on how expressed).

If a school librarian is subjected to acts which alarm or seriously annoy them, and serve no legitimate purpose, there can be grounds for a harassment claim and protective order.

If social media is used to attack a librarian's character, or to abuse or stalk them, there can be grounds for account suspension and other remedies.

If a school librarian is subjected to abusive or negative comments regarding gender, sexual orientation, race, or religion that create a hostile environment, and after a complaint, nothing is done to stop the behavior, it can be a violation of the New York Human Rights law and federal civil rights laws.

If a school librarian is subjected to a coordinated attack by a registered charitable organization or PAC in violation of formation documents or state/federal law, the organization's actions can be reported to the Attorney General or other regulatory authority.[2]

If a school librarians' image is used to raise funds and/or to agitate people into donating money or for other commercial purposes, there can be grounds for a case based on misuse of the librarian's right to personality.

If a school librarian is subject to abuse or conduct that leads to stress-induced workplace injury, they can bring a claim for worker's compensation.

If a school librarian raises concerns regarding harassment, abuse and safety, and is subject to retaliation for raising such concerns, such retaliation could be the basis of a claim based on violation of state and/or federal labor law.

If a school librarian's employment is threatened or ended due to wrongful accusations, the wrongful accusations can be addressed via a combination of legal claims.[3]

For every possible "cause of action" (the items in bold) listed above, there is a precise formula, deadline, and basis for damages that will require careful analysis of the facts.  For this reason, obtaining timely and competent legal advice is essential.

A Disclaimer

Every one of the above-listed "causes of action"--and more--can be used to fight abuse and harassment based on performance of a school librarian's work...if the right elements are present.  That said, make no mistake: 

• A person or group who thinks a particular book shouldn't be in a library has a right to state their opinion;
• A person or group who thinks a particular book is harmful may have a right to use policy and procedure to challenge that book within a library's catalog;
• A person or group who has a bona fide belief they have witnessed criminal behavior has a right to report it.

This is the United States of America, and we are in the mighty State of New York.  If a person wants to say they don't like a book--and even if they want to say they don't like that pesky librarian--they get to say that.[4]

That said, a person who uses their voice and power to defame, harass, threaten, and injure[5] a school librarian may have to face the consequences.

Being Ready to Bring Consequences

To assess if advocacy or self-expression by a person or group protesting books in the library crosses a line, a school librarian should seek the opinion of an attorney.[6]

This attorney does not need to be an expert in First Amendment jurisprudence, Labor Law, or Education Law...but should have some experience in handling significant matters related to the tactic being explored (or at least a willingness to roll up their sleeves and do serious research[7]), and be ready to assess the full facts of what the librarian is dealing with. 

What does this assessment look like? School librarians, once you retain an attorney through a written retainer agreement,[8] be ready for that attorney to have to spend up to ten or more hours gathering information, researching, and developing an array of options.[9]  The lawyer should review the policies and procedures that create the playing field for the drama unfolding before deciding on a course of action[10] (assessing the viability of legal claims should not be a hasty exercise).  And when the initial assessment is complete, expect a written opinion setting out their options, so you can make an informed decision before the attorney takes any action.[11]

In addition to exploring claims a school librarian can bring, some of the above-listed items are relief the employer may be obligated to bring...meaning the librarian's lawyer should be ready to articulate the strong "expectation"[12] that the school or district will go to bat to protect the rights and safety of their employee.  A district or school does not need to stand idly by when its librarian is under attack--and in many cases, the options listed above are available to the school, as well as the librarian.

Whenever possible, the fight for intellectual freedom is not a battle to wage alone!

Which brings us back to our other tactics:

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

All of these can help if the legal tactics above need to be utilized. All of these can help if you need to decide that the best defense might be an offense. 

So: [Do] school librarians facing these kinds of accusations have any recourse...?

You bet they do.

Thank you for an excellent question.

[1] Presentations include: Wayne-Finger Lakes BOCES on March 2, 2022; Southern Adirondack Library System on March 11, 2022; Monroe County Library System on March 21, 2022.  Many thanks to the school district library system directors who invited me into their space for these events, and many thanks to the school librarians for their courage and commitment during difficult times.

[2] Such as the Internal Revenue Service.

[3] "Combination of claims" is my catch-all for a contract violation, policy violation, union grievance, random legal violation, etc.

[4] The First Amendment: "Making no one happy since 1791."  Ah, democracy.

[5] "Injure" in the legal sense, meaning a "tort," not just a physical injury.

[6] By this, I don't mean the district's attorney, or even the local BOCES attorney (although they should be helpful, too).  By this, I mean an attorney who is 100% only concerned with the rights and interests of that particular librarian.  To find that attorney, contact your area's local bar association, or ask for a referral from a trusted attorney who practices in another area of law (attorneys like to refer people to other attorneys who can provide good assistance).  If you are worried about costs, see footnote #10.

[7] Did you find a newbie?  My advice is to never write off any attorney willing to admit they don't have extensive experience IF they are willing to connect with a mentor and/or do the research to develop experience in a particular area or law.  Just make sure they don't charge you too much for learning on the job!

[8] Yes: a written retainer agreement.  Not informal advice from your cousin the lawyer, or a third-year law student, but someone with malpractice insurance who gives you a WRITTEN opinion you can rely on.

[9] For example, the attorney for a school librarian being bullied on social media should assess: 1) is this something the school district's attorney should handle? 2) Is there a union that should be fighting for the librarian? 3) Is there relevant school policy that should be enforced? 4) Are the issues causing or contributing to harassment, abuse, threats, or a medical condition? 5) Is social media a factor?  --Just to name a few.

[10] This part sounds boring, but it is vital.  For an example of how such tactical considerations coalesce, see https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf.

[11] As I have written before, if you are a librarian concerned that a right to read issue could impact their job, and those hours of attorney work are unaffordable, contact the Merritt Fund.

[12] Did I say "expectation?" I mean "clearly written demand."