[Libs-Or] Leah Griffith's questions about the use of music and movies in library programming

[Candace Morgan]

Leah Griffith asked some very important  questions about copyright
implications of public performances in public libraries.  I am not an
attorney, but here is what I have learned about this subject.

 

1.	We do pay performers to perform music at our libraries.   We don't
charge the audience, but we pay the performers either musicians or jugglers
that may use background music etc.     Does this mean we need
licensing/royalties? 

One of the conditions for the use of 17 USC 110(4) is that no payment is
made directly for the performance.  If the use does not meet the
requirements for Fair Use (17 USC 107) and does not qualify for the
exemption you do need to get permission directly from the copyright owner or
pay royalties.  Using entire copyrighted works in a public performance would
be very unlikely to qualify for fair use.  However, let's say you are having
a program on the history of jazz and the performer plays small parts of
musical works to support her arguments. You would need to analyze all four
fair use factors but this use might be fair meaning you would not need to
pay to use each piece.  Also if your staff presents the program as a part of
their duties the exemption would apply if all other conditions are met. 

 

2.	So we pay licensing for showing movies because they are "dramatic"
literary works (Section 4)?   

Yes if the movie is a dramatic literary work. However, not all movies are
dramatic.  Documentaries may qualify for the exemption - see the information
on the difference between dramatic & nondramatic in the document I posted to
libs-OR. 

You do have other alternatives - look for a movie in the public domain. One
place to find them is  http://www.openflix.com <http://www.openflix.com/> /;
look for a movie with a Creative Commons License
http://creativecommons.org/ that allows noncommercial use; purchase movies
that include the right to use in a public performance. 

 

3.	It seems that copyright and licensing might be two different things.


You are correct.  The copyright owner has a number of exclusive rights that
are distinct from ownership of a work. You buy a work and you can use for
its intended purpose (reading, for example). However, the sale does not
transfer exclusive rights like public performance.  Despite that if the use
of a work is a fair use as defined by law (Section 107) or falls within one
of the other limits / exceptions to copyright law you do not have to have
permission of the owner. 

 The law allows the owner to transfer any or all of the exclusive rights.
One of the ways to do this is a license. Licenses are governed by state law.
If you have acquired a licensed  work fair use and other exemptions in
federal law do not apply unless the license agreement (or terms of use)
includes the concepts of fair use.   

Note - because of another section of copyright law called First Sale
(Section 109) - if you lawfully acquire a work you can sell it, give it
away, or lend it without violating the exclusive rights. That is how
American libraries can circulate books and other library materials.  

 

4.	It does seem like something that should be more of a black and white
answer and it always seems pretty grey.  

Again - you are correct. Copyright law is very complex. Much of it is
deliberately vague (especially fair use).   Whether a use is fair can only
be determined in light of the facts related to the work and the intended
use.   I am aware that some local governments  purchase licenses from ASCAP
and BMI for all public performances sponsored by their departments.
Presumably they are doing so after consulting an attorney who is well versed
in copyright law. Not all institutional attorneys are.  So it is important
that library staff have enough knowledge to ask questions and to consider
whether there alternatives to accomplish the desired goal. 

 

I hope this helps - I am happy to respond to other questions within the
range of my knowledge.

 

 

 

Candace Morgan

cd_df_morgan at msn.com

(503) 245-3868 (home/office)

(503) 701-2316 (cell)

 

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