To Hear a Mockingbird

Can’t find a recording of Harper Lee’s classic? Here’s some sound advice.

By Carrie Russell -- School Library Journal, 3/1/2006

One of our teachers needs several audio copies of Harper Lee’s To Kill a Mockingbird, but none are available—anywhere. Are we allowed to make copies of it or record someone reading the novel?

—Cliff Tuttle, media specialist
Monarch K–8 School, Louisville, CO

The library should purchase the necessary copies. If To Kill a Mockingbird isn’t available in audio form (on CD, cassette, or vinyl) and the teacher requires a copy in order to meet her teaching goal, I think it would be a fair use to make a copy (or two if necessary) and place it on reserve in the library so students can use it. This solution may not work for the teacher if she truly needs multiple copies. If that’s the case, there are two options. The teacher could modify her lesson plan so she no longer needs numerous copies, or she could seek permission from the copyright holder’s estate (assuming that the copyright is held by Harper Lee and her heirs) to make additional copies.

Making one’s own recording of To Kill a Mockingbird muddies the waters because the new version would most likely be considered a derivative work—another right held exclusively by the copyright holder.

It’s taken us months to track down a recording of To Kill a Mockingbird. The reason? It’s no longer in “print.” (We finally bought one through eBay, from a man in Turkey.) Is it legal to make a copy of the 10-CD set, circulate it, and store the original?

—Karen Klein, volunteer librarian
Synergy School Library, San Francisco, CA

Unfortunately, the law does not allow the library to make back-up copies of materials “just in case”—except for preservation and replacement purposes. Under Section 108, the preservation exception applies only to unpublished works. The replacement provision is also not appropriate because the CD format is not obsolete—one of the requirements one must meet in order to exercise the replacement exemption. However, since a recording is not readily available in the marketplace, one could argue that making a copy is a fair use. Also, since the use is nonprofit, educational, and access to the title will always be limited to one copy, it seems like a fair use.

If a public library has a specific time set aside for homeschool groups, is it allowed to show them education videos? After all, homeschoolers use the library as their classroom. I know that schools have an exception to use videos for teaching purposes. Does the exception also apply to public libraries?

Carolyn Davidson, continuing education/library consultant
North Texas Regional Library System, Inc., Denton, TX

The teaching exemption that you refer to—Section 110(1)—limits the copyright holder’s right to publicly perform a work. The exemption only applies to nonprofit, educational institutions. So if your library isn’t affiliated with a nonprofit school, you can’t take advantage of Section 110. On the other hand, you may have a good argument for fair use. Factor one considers the purpose of the use. In this case, the public performance is nonprofit, and although it’s not performed in an educational institution, it has an educational purpose. Factor two considers the nature of the work used. If the videos are educational in nature (rather than entertainment oriented), this factor suggests that it’s a fair use. Factor three considers the amount of the work used. In this instance, you want to show an entire work, which tends to be unfair.

The final factor, the effect of the use on the work’s market, is the tough one. You could of course simply ask permission and pay a royalty fee to the copyright holder. In fact, a copyright holder might argue that royalty payments are an essential revenue stream for his films and the failure to pay a fee has a harmful effect on the work’s market. But it’s also important to consider the public performance in light of its potential social benefit to others. My interpretation (and others might disagree) is that your particular use is a fair one. There’s also another possibility: if the homeschoolers frequently need to view videos in a group setting, their parents could consider purchasing educational videos that already include public performance rights.

Author Information

Carrie Russell is the American Library Association’s copyright specialist. She will answer selected questions from readers. Send questions to slj@reedbusiness.com, with “copyright” in the subject line. Be sure to include your title and the name of your school or public library. Note: Carrie’s comments are not to be considered legal advice.

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