Hooray for Hollywood

By Carrie Russell -- School Library Journal, 7/1/2004

In a recent staff meeting, we discussed the possibility of showing movies to students so that teachers would have more time to complete their paperwork. What do you think of that? Also, one of our teachers claims it's OK to make copies of books that are out of print, as long as their authors are no longer alive. Is he correct?
—Myra Worrell, media specialist, Konnoak Elementary School, Winston-Salem, NC

To answer the first question — Exercising the right of public performance of an audiovisual work for entertainment purposes—we can turn to Section 110 of the copyright law. Audiovisual works are more strictly protected than other works, even certain works of music. The film industry has been successful in convincing Congress that its market would be significantly harmed if unauthorized performances (even free performances) were not strictly controlled. Thus, only public performances for actual teaching purposes are exempt according to Section 110. Sometimes, however, an audiovisual work may be shown in nonteaching situations if the performance is a fair use, based on the four factors of fair use.

What have the courts ruled on this topic? To the best of my knowledge, they haven't ruled anything. Anecdotally, I've heard of schools that have received letters from copyright holders, urging them to "cease and desist" to avoid costly litigation. Some schools have agreed to pay the copyright holders. But there is no public record of these occurrences.

Many schools take a better-safe-than-sorry approach and obtain blanket public-performance licenses from reputable licensing agencies. The downside is that they end up paying for classroom performances that are fair uses. These schools also are required to pay an annual licensing fee and, as time goes by, those fees are likely to increase. In the long run, the film industry can argue that unauthorized public performances have a negative effect on their market, since they derive a revenue stream from licensing public performances.

My hope is that schools and libraries will seriously assess their need for performance licenses before signing on the dotted line. We don't want to fall into the trap of paying fees that aren't necessary—thereby tacitly acknowledging that the law should continue to give audiovisual works special protection.

As for the second question, out-of-print books are protected for their entire copyright term. A work may go out of print soon after it is published, but it's still protected. The current term of copyright is the life of the author plus 70 years—so you must always add 70 years to the deceased date.

There are exemptions in the copyright law that allow unauthorized reproduction of entire books that are still protected by copyright, such as making a copy for preservation, scholarship, or research purposes. However, these exemptions come with many requirements and conditions. Also, there may be unusual circumstances where fair use may apply.

One of my colleagues wants to write an article on Web sites that sponsor contests. These sites often send congratulations letters, informing students that their submissions have been accepted for publication. May the teacher quote from these letters or include the entire contents of one of them in his article?
—Diane Goheen, library media specialist, Topeka (KS) West High School

A congratulations letter is protected by copyright if it is original (in other words, not a copy of another person's letter), meets the creativity standard, and is fixed in a tangible medium (in this case, printed on paper). The copyright holder is the author of the letter or the company that has hired him to write the letter. Quoting from the letter is probably always a fair use. Including the letter in its entirety in an article is open to debate.

One might argue that quoting the entire letter is a fair use—after all, the article is for educational purposes, the entire letter may need to be quoted to make a critical point, the copyright holder has a limited market for the work, and the letter is factual in nature. On the other hand, one might argue that the case for fair use is just not strong enough and decide to seek permission to use the entire letter in an article. I lean toward a fair-use determination, but that's my professional opinion, not legal advice.