Truth, Omissions, and DVDs

Is it legal for educators to use rented films in the classroom?

By Carrie Russell -- School Library Journal, 2/1/2005

My video store had me sign a statement that says its rentals are for home use only. I also received a notice from the Discovery Channel Store with the following message: "This video is for personal home use only. There are many rights, restrictions, and licensing issues involved with showing a video in a public performance. Any classroom, meeting, or training session is considered a public performance."

You once wrote that educators may use lawfully made videos—including rentals—for teaching purposes. It seems like the stores' statements contradict your advice. Which is correct?
—Joanne Cecere, librarian Monroe-Woodbury High School, Central Valley, NY

The video store and Discovery omitted some important information—namely that copyright exemptions allow one to exercise a copyright without the prior permission of the copyright holder. Discovery's statement is correct: showing a video before a public group—even in the classroom—is a public performance. However, Discovery does not mention Section 110(1) of the copyright law, which allows nonprofit, educational institutions to publicly show works.

Likewise, your local video store's copies are for "home use only," but again, the same exemption, Section 110(1), kicks in—unless the document that you signed is a legally binding contract. That's the toughest part of the question.

State law governs contracts. Although it's unlikely, it is possible that in some states a video store contract is considered legally binding. If that's the case, it is a "nonnegotiated" contract. Some courts have ruled nonnegotiated contracts are not legitimate contracts by their very nature—a contract should be an agreement between two parties—but other courts have disagreed. (For more details on the Uniform Commercial Information Transactions Act [UCITA], visit www.ala.org/ucita.)

So, where does that leave us? Copyright law is interpretative, and that means that reasonable people can disagree about its meaning. You may have already received conflicting information from lawyers and other copyright specialists. To further complicate matters, federal and state laws sometimes seem to be in opposition. We can only look to court rulings to get a (somewhat) final answer to puzzles like these. Unfortunately, at the present time, there are no court rulings that address this particular situation.

I read an article ("An Extreme Makeover," September 2004, p. 18) about a school that commissioned a local artist to create murals that include characters from Dr. Seuss books and Disney films. There was no mention of any licensing fees having been paid. Did the artist violate the copyright law?
—Eric C. Bateman, librarian Canandaigua Academy Library, Canandaigua, NY

It's hard to say. We don't know if the artist negotiated a license with Dr. Seuss's representatives prior to creating the murals. However, it seems unlikely that Disney would give anyone permission to reproduce their characters. They've already sued a day care center that painted Mickey and Minnie Mouse on its building.

But fair use exists whether copyright holders like it or not. Ultimately, we need to review the four fair-use factors to make an informed decision. If this particular use is fair (and I would probably lean that way), one must then consider the potential risks. Does the library want to risk upsetting Disney, knowing its track record? Sometimes, libraries may choose not to exercise fair use—not because fair use does not apply, but for fear of litigation.

Our library wants to make video or DVD copies of some of its older filmstrips to update its collection. Is that legal?
—Lila Morris, media center director Aberdeen Public School District, Aberdeen, SD

This is an infringement unless the following is true: the filmstrip format is obsolete, a replacement (in the new format) cannot be found at a reasonable price, and the copy (if it's digital) does not leave the library's premises. Section 108 addresses this and many other copying issues. A format is considered obsolete "if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."