Solving the Puzzle

A number of our students are crossword-puzzle enthusiasts. To save wear and tear on our newspaper, are we allowed to make 20 copies of the crossword puzzle for them?
—Bill Sherfey, upper school library media coordinator The Blake School, Minneapolis, MN

Making copies without the prior permission of the copyright holder is an infringement of copyright law, unless another copyright exemption or fair use applies. According to Section 108, a library employee can make a copy if it becomes the property of the user, and the employee has no reason to believe that the copy will be used for any purpose other than private study, research, or scholarship. This exemption allows librarians to make only one copy. However, if each of the students came up to the librarian individually and requested a copy, she could oblige. (Of course, the students can also make their own copies.) But according to Section 108, a librarian can't make multiple copies to distribute later in the day.

Is copying the puzzles fair according to the four fair-use factors? The first factor asks if the use is for a nonprofit educational purpose or a for-profit purpose. I imagine the crossword puzzles will be used for personal enrichment or entertainment, but certainly not for profit. The second factor, type of material, is a difficult one to figure. The crossword puzzle is a published work, but determining its degree of creativity is at best, a judgment call. The third factor is amount. One must copy the entire puzzle in order to solve it. Finally, the fourth factor is the effect on the market. Would the students buy individual copies of the newspaper just for the crossword puzzle? Probably not, plus the library has lawfully acquired the newspaper.

A conservative approach would be to continue having the students make their own individual copies. A more liberal approach would be to make the copies. I myself would go ahead and make the 20 copies.

An art teacher would like to superimpose student pictures on copies of famous paintings, like the Mona Lisa or works by Andy Warhol, for a fund-raiser. Is this legal? Also, how old does a painting have to be before it becomes public domain?
—Francine Eppelsheimer, middle school librarian University School of Milwaukee, WI

Teachers have a lot of ideas! By superimposing student pictures on famous paintings, the art teacher is exercising the right of reproduction, the right of display, and the right to create derivative works. These rights are the exclusive rights of the copyright holder. Is there an exemption that could apply?

First of all, any work published before 1923 is in the public domain. The Mona Lisa is in the public domain. Some photos of the famous painting may be original and creative enough to have their own copyright protection. If the photograph is an exact copy of the work (no fancy lighting, no abstract angles, no "specialness" unto itself), the photo is probably in the public domain. If a work is in the public domain, that work belongs to the public. You can use that piece in any way that you want. No problem with the fund-raiser.

Andy Warhol's works are still protected by copyright. His works are quite valuable and are probably earning lots of money through royalties and permission fees. I would stay away from works that have the currency and value of an Andy Warhol piece.

Could other works that are still protected by copyright law be used? My response is probably not due to the fact that the art teacher plans to sell the superimposed works. I cannot see that fair use would apply here. Stick to the public-domain works, and all is permitted.