Carrie on Copyright: Rules of the Game

Lots of school and public libraries are hosting gaming tournaments, featuring popular video games like Guitar Hero and Madden Football. Since these games are intended for home use, isn’t that similar to purchasing a movie and showing it to a large audience?

Everyone seems to be asking that question! Video games come with licensing agreements, and before purchasers can play the games, they must agree to their terms. The video-game licenses that I’ve seen are strictly for “personal, noncommercial” uses—not public ones. So when libraries host gaming programs, they’re violating these agreements. Yet, lots of libraries are doing just that—and they’re getting away with it. And some are even charging an admission fee to attend these events. What gives?

My guess is that video-game distributors never anticipated their games would be used publicly. So when their lawyers drafted the licenses, they simply used language commonly found in software contracts. But perhaps things will change. For instance, sometimes laws are modified to reflect changes in public opinion. And sometimes new business models are created to reflect technological developments or consumer demand. (Remember when record companies would only sell an entire album instead of an individual song?)

What should librarians do? I can think of at least three options. Librarians can: (1) continue to offer video-game competitions and let the chips fall where they may; (2) contact the rights holders and ask if their licenses can be modified to accommodate your programs; or (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home use—and unless they tell you not to, you’re planning to offer gaming tournaments. Although the last option sounds incredibly brazen, copyright experts say it happens all the time in the business world. Of course, there’s always the possibility that your library may be held liable for misusing a video game (sorry), so each of us needs to determine how much risk we’re willing to take.

We recently planted a tree on town property, and we’d like to put up a plaque with a brief, one- or two-sentence quote from Shel Silverstein’s The Giving Tree. If we attribute the quote to the author, is that OK?

It’s time, once again, to turn to our four fair-use factors. The purpose of your use (nonprofit, but not educational) leans toward fair, but the nature of the work (a published volume of highly creative poetry) works against you. The third factor, the amount of the work used, is in your favor, since you’re only planning to use a brief quote. And finally, the effect on the work’s market also suggests that it’s fair, since you’ll probably attract attention to The Giving Tree, which may result in extra sales. What about the author’s heirs? Do you have to get their permission? Not necessarily. Overall, I think your use is fine.

We’d like to podcast some of the sessions from our annual library convention, and I’m contacting the speakers to get their permission. One of them would like to publish her talk in print, and she wondered if she could publish something that’s been podcast? What are the copyright implications?

A podcast does constitute a publication—after all, it’s a digital copy that’s accessible to the public. What are the speaker’s options? If you agree, she can modify the original contract to say that the right to record and distribute a podcast is nonexclusive and does not affect any other rights of copyright. Remember, copyright is divisible, and its rights can be assigned in any way that’s agreeable to both parties. But even without a formal contract, the speaker still retains the copyright to her own work. So she can modify or publish it whenever she wants to.