Carrie on Copyright: the Fine Print

One of our teachers would like her students to see a TV program she purchased from iTunes. The program clearly relates to the curriculum, and we can show it on a TV monitor, rather than on her iPod. Is that OK?

When the teacher registered to use iTunes, she had to agree to the terms of Apple’s nonnegotiable license (otherwise she couldn’t have downloaded any of the files). Many of us don’t take the time to read those terms, but we probably should. ITunes’s license says that when one downloads a video, song, or other digital file—which is likely protected by copyright by a third party, such as a recording company—the file can only be used for “non-commercial, personal use.” In this case, the teacher would be violating the contract’s terms if she showed the video in her classroom. This is a good example of how contract law can restrict some of the uses that are otherwise lawful under the copyright law. If the teacher or library had purchased a DVD of the episode, she would have been able to publicly show it under Section 110 (1) of the copyright law, which allows screenings in the face-to-face classroom.

A number of Web sites offer “completely free downloadable screensavers” with popular cartoon characters. Is it alright to cut out an image of SpongeBob SquarePants and use it on my Web page? I also have Disney characters from a site that claims the images are “absolutely free.” Should I trust the site? Are some of Disney’s images in the public domain?

It’s hard to know what to believe when it comes to “completely free downloadable screensavers.” So I decided to do some investigating. According to a company called Screensavers, it appears that many of its images and screensavers are protected by copyright, but Screensavers has negotiated a contract with third parties (copyright holders) to allow their use. The company’s license goes on to say that “[y]ou acknowledge that Screensavers and/or third party affiliates own all rights, title and interest in all materials provided through the Screensavers Services and to all software portions thereof including, without limitation, all Intellectual Property Rights,” and that use of Screensavers’ services is restricted to “your personal and non-commercial use.” In addition, “you agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any portion of the Screensavers Services or the Installer.” According to their license, you can’t cut out SpongeBob and put him on your site. Other screensaver sites may have different terms, so be sure to review them before downloading their images. I don’t know if any of Disney’s characters are in the public domain—and trademark law may also protect some of them. Make your life easy: just avoid using Mickey, Minnie, and their pals.

Can libraries make archival copies of audiovisual materials? Are we allowed to make a copy of an AV item that has been lost, stolen, or damaged and is no longer available commercially? Also, can you please explain Section 108(i) of the copyright law? As far as I can tell, it doesn’t apply to AV works other than newscasts.

There’s no such thing as an “archival copy” in the copyright law. You can’t make a copy of anything (except software) ahead of time, in case you eventually need one. Section 108’s exemptions for materials that are stolen, damaged, or lost apply only if you’ve spent a reasonable amount of time searching for a replacement copy and can’t find one in the marketplace. If that’s the case, you can make a digital copy, but you’re not allowed to circulate it. In other words, the new copy can’t leave the library. As for Section 108(i), it’s true that audiovisual works are excluded from Section 108’s exemptions, except for preservation 108(b) and replacement 108(c) if the existing format has become obsolete.