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Copyright and Streaming Storytime

Copyright and Streaming Storytime

Is permission required for public performance (reading) of a picture book for a streamed “story time” conducted by a public library?

First, Copyright law is an extremely complex area of law. Given that the penalties for infringement can be severe, it can not be stressed enough that any library considering embarking on a program of streaming and/or recording /posting story time performances should consult with  their attorney before determining a course of action

This memo is meant as a tool for information and resources – NOT as legal advice.

A published storybook (or any other published work) would be covered by the Copyright Act, 17 USC 101 et., seq.

The United States Copyright Law, 17 USC 101 et seq., governs the use of copyrighted works.  There may be more than one section  of the Copyright Act that could address this issue. This memo will look at each of them and then provide a range of options the library could possibly follow.

The first, and possibly the most obvious of these sections is  17 USC 107. Section 107 of the Copyright Act covers what constitutes “fair use” of a copywritten work.

To begin, we will consider “fair use.”  “Fair Use” describes uses of copywritten works by entities other than the copyright holder in quantities, means or purposes that do not infringe on the rights of the copyright holder. Section 107 evolved out of court opinions that developed the Fair Use concept over  decades, and the language was added to the 1976 Copyright Act.

 In order to perform, utilize, or reproduce a copyrighted work and be covered by the “Fair Use” exemption, the use must meet four (4) criteria:

Ҥ107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (emphasis added)”

 

Reading a story book  aloud would be a performance of the copywritten work.

It is widely interpreted among copyright scholars and copyright librarians that Library Story Hour face-to-face performance use of a copyrighted literary work complies with these four criteria:

 

  1. Purpose is non-profit & educational (no money is charged, public libraries are non-profit, governmental charitable entities)
  2. The work used is (generally) a picture story book – which is meant to be used by or for certain age groups, and (generally) are meant to be read aloud.
  3. All  of the work will be used – because that is the nature and purpose of the work – the whole book is meant to be read. Story hour can’t happen if the whole book isn’t read.
  4. The effect of the use upon the market would not be detrimental, and in fact could be helpful, because exposing children to books and reading would likely not only get the kids to want to read the book used again, they will want to read more books by that author and other authors – a scenario that actually HELPS the market.

 

So, it would appear that the actual public READING of the book for story hour is fair use. – but what about the recording/ streaming part of the question? The public performance of the book in the library would be fair use (as well as permissible under 17 USC 110(4) – but more on that later), however, recording and posting video or audio poses additional questions with relation to copyright.

Once a recording of a story hour is made, the  copyright question possibly becomes not only about the performance, but also about the possible creation of a derivative work (the recording of the performance). There may also questions surrounding the copying and use of illustrations, music/songs, rhymes, etc. Each of these elements could have a separate copyright issue.  Each separate work would have to be separately analyzed under Fair Use and /or other appropriate sections of 17 USC 101, et. seq. Music and graphics, in particular , can be more difficult to justify as “Fair Use.”

“Derivative works” are works created using existing works. The law has specific criteria for what constitutes a derivative work. Under 17 USC 101, “Derivative Work” is defined as:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 101

The issue with derivative works is that the existence of one can be another incident of infringement, since under 17 USC 103 provides copyright owners of the source material rights over the creation and subsequent existence of the derivative work.

In other words, even if reading /performing the book “live” is fair use, the recording and posting of a digital file  containing that same reading could be an infringement. There are not many legal authorities that discuss this specific use, but a careful use of the fair use analysis as well as a review of other possible pertinent sections of the Copyright Law  may provide enough information and context to determine a plan of action.

If we put the “Derivative work” issue aside for a moment, let’s look at why there might be a copyright issue for the posting or streaming  of a story hour to Facebook or YouTube, when the same reading performed live in the library would be ok.

From research into various Copyright Law case opinions and legal articles and treatises, it would seem that the biggest issue is that the streaming and/ or posting of the reading can provide access to that work to large numbers of people – a number far beyond that which would participate in the live library reading. In other words, a posting or streaming now distributes that work publicly – which is ANOTHER right given exclusively to copyright holders in 17 USC 101 et. seq.  If you take that a step further, it could be argued that providing this access (ostensibly free and easily available) via YouTube or Facebook, also provides opportunity for others to copy text, illustrations, etc. from that recording and cause additional infringement and damage to the copyright holder – the more the work is available for free, the less likely people might be to pay for it and actually purchase the work. The market of the work could be diminished (see the 4th factor of Fair Use – it could also be argued that the market could be enhanced, that the reading could encourage children and audiences that view it to purchase the book or others by that author).  The determination of enhancement vs diminishment would likely be situational and determined by a court after infringement is alleged

There seems to be no legal authority that covers the ability of a library to stream a storytelling session. The “fair use” analysis would seem to imply that such a presentation would be ok as far as the reading itself goes, but things get more complex when you consider the recording of elements such as illustrations and/or other story time elements such as songs (the performance of which may be covered under additional sections of copyright law).

It is possible that a “fair use” analysis of a publicly posted story time recording would not be resolved in favor of the posting. However, let’s look at other sections of 17 US 101 et, seq., that may bring such a posting or streaming within the confines of Fair Use, or, another section of Title 17, or maybe mitigate possible infringement.

Section 110 of the Copyright Act (17 USC 110) governs certain restrictions on performance rights that copyright holders may have over nondramatic literary works (such as story books). Section 110(2) permits performances by educational institutions (such as schools and universities), and government entities, and is largely intended for the performance of works as part of a curriculum or coursework in a face-to face classroom or as part of a distance education program. 110(2) also covers “systematic mediated instructional activities of a governmental body.” The problem with 110(2) is that the requirements include that broadcast is only for and (to the extent technologically feasible) to students registered in the course or government employees or officers in the course of their employment.  (so, a performance broadcast by a school library on a school course management system such as Blackboard, or, arguably even a posting on a web or Facebook or YouTube channel would be ok as long as access is limited to students).

In other words, while the activity of streaming library story hour hovers around all of the requirements for 110(2), it doesn’t fit exactly within it.

Another option is possibly 110(4):

17 USC 110(4) (emphasis added):

(4)performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A)

there is no direct or indirect admission charge

 

Note the “otherwise than in a transmission to the public.” Generally, in other copyright contexts, “to the public” is interpreted as distributed widely & freely accessible. This section provides the exemption that permits school and military bands to perform in public or in a concert. This section is also generally considered to pertain to performances to an audience. However, the case that established the ability of people to have ringtones on their cellphones without a performance license. “In re Application of Cellco Partnership v. ASCAP, the court found that the playing of ringtones by consumers qualified under Section 110(4)” 4 Patry on Copyright § 14:37, citing In re Application of Cellco Partnership v. ASCAP 2009 WL 3294861 (S.D.N.Y. Oct. 19, 2009). It is unclear if this can be successfully analogized  to YouTube or Facebook postings of story hour. Story Hour posted to Facebook, YouTube, etc. is arguably for non-profit purposes and a public library is a non-profit, tax exempt entity. Posting to  a Library Facebook or YouTube account could, arguably, be a performance to a public audience as much as a ringtone.

This is a complex analysis and the law does not hold a clear or definitive answer. As with 110(2), the scenario at hand does not quite fit within  the confines of 110(4), but hovers, frustratingly,  just around it.

So, what does this mean for the average public library?

The research and legal authority I have seen would suggest that libraries considering posting and/or streaming story hours should consider:

  • Obtaining permission for streaming a story hour – or, for now (until there is a court opinion or some other legal authority with regards to public library streaming), restrict recorded story hours to books in  the public domain. – this is probably the safest option.
  • Live streaming  the reading (without recording and limited with respect to additional features such as music or illustrations)- preferably via a private YouTube or Facebook page, access to which would be available only to patrons.
  • For any recording of a work covered by copyright:
    • Limiting with respect to additional features (songs, illustrations displayed, etc.)
    • Attributing and crediting the author/rights holder(s)
    •  Limit access to the intended audience as much as possible (a private YouTube channel and the link is sent only to library patrons who sign up for it, or who are card holders under a certain age).
    • Employ measures available on the chosen platform to prevent or limit copying of the performance. 
    • Consulting their attorney.

In other words, if a library posts a recorded story hour presentation to the library website and then restricts access only to library patrons via a password or other login, or, if the video is restricted to a private YouTube or Facebook page where only patrons can access it, then it is, arguably not “to the public.” The library is mitigating the distribution of the work.

The research I have done would suggest that there is an argument for the ability to live stream story time under Fair Use or, arguably, possibly under section (2) or (4) of Section 110 (given the broad intent and discussions of 110 – even though it is not clear that libraries are covered by 110), as long as the library restricts access, and does not permit recording of the event.

HOWEVER, posting copies of the recording for continued use is more tenuous unless you do obtain permission from the rights holder of the book (which can usually be done by contacting the rights department of the publisher of the book).

Limiting access, limiting content, and deterring copying are all measures that can possibly mitigate a claim of infringement, but to be completely certain and safe from liability, libraries should probably  consult their legal counsel.

The following “Programming Librarian” article nicely sums up this issue and may  be a useful additional resource for you.

http://programminglibrarian.org/articles/copyright-tips-programming-librarians-storytimes

Additional Resources

Party on Copyright (Various sections), West, 2018 (Legal treatise specializing on copyright law)(available at Law libraries and via Westlaw).

NPR Story on Fair use and digitization: http://www.npr.org/templates/story/story.php?storyId=123684026 

OhioNet Blog discussion: https://www.ohionet.org/blog/2019/02/copyright-q-whats-story-storytime

 Columbia University Fair use tools :

https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html

Stanford University fair use page:

https://fairuse.stanford.edu/charts-and-tools/#fair_use
 

Clare Membiela
Library Law Consultant