Imitating the Masters

The bus safety videos provided by the transportation department need replacement. We have been using them for instructional purposes. We've attempted to purchase additional copies, but haven't found any. I recommended sending a letter to the distributor asking to purchase additional copies, or if copies are not available, permission to make a duplicate of each tape. Is this the proper procedure? What can we do if the distributor does not reply to our request? —Harlene Rosenberg, supervisor of instructional media center Hunterdon Central Regional High School, Flemington, NJ

You've done the right thing: you have hunted for replacement copies and contacted the distributor. But distributors sometimes go out of business or fail to reply to requests. After a futile search, is it lawful to make copies?

Maybe.

The copyright law, Section 108 (c)(1), does allow that replacement copies be made if the library cannot find a replacement copy after a reasonable search. However, this exemption does not apply to videos.

Can a case be made for fair use? It appears that the copies are for nonprofit, educational purposes, that the videos are technical training tools rather than more creative works (such as a Hollywood film), and that although the entire work is being copied, there is no market for it. There is a very good argument here for fair use.

One interesting twist to consider here is whether the works are in the public domain. As many readers know, if materials are in the public domain, they may be copied by anyone for any purpose. I know what some of you may be thinking: How can a videotape be old enough to fall into the public domain? There was a period of time from 1978 to 1989 when a notice of copyright—for example, ©1979 Carrie Russell—was required by law on copyrighted works. Without such a designation, a work was assumed to be in the public domain. Corrective measures were taken to retain copyright for these materials, but they had to be registered with the US Copyright Office within five years of their publication. So, if the training videos were published between 1978 and 1989 and do not have a copyright notice, they may be in the public domain. To make sure, check the U.S. Copyright Office's records to see if the videos are registered. Its records may be searched online at www.loc.gov/copyright.

We are planning to publish a literary magazine of our students' poetry and artwork. One of our students has drawn freehand pictures of the characters from the cartoon Dragon Ball Z . Do we need to ask permission to print the student's renderings? —Libby Wells, library media specialist Gulfport (MS) High School

Drawing pictures of characters from cartoons, even popular cartoons, for art class is not an infringement of copyright. It would be an infringement if the student created his own Dragon Ball Z cartoon—with all the same characters—and published it in the comic book or cartoon market. Also, it might be an infringement if the drawings were posted on the Web, widely accessible to the public, who might confuse the drawing with the original work. Learning to draw often involves trying to replicate another artist's work, and I think students should be allowed to do that without asking permission.

What about publishing the drawing in the school literary magazine? I would argue that the use is a fair use. The use is intended for nonprofit, educational purposes, and even if the magazines are sold, the literary magazine does not compete in the cartoon market. Including the drawings in the magazine does not result in lost sales for the copyright holder of Dragon Ball Z. In fact, people might be more interested in Dragon Ball Z by seeing the drawing. One might want to note in the school literary magazine that the drawing was "inspired by" or "based on" the Dragon Ball Z cartoon.