How Fair are Children's Librarians?

In accordance with the instructions for this essay, I have not sought out any more justification for the remarks that follow than the language of the Copyright Act itself, together with the House and Senate Committee Reports. Nevertheless, a hasty search suggests that the literature on the subject is sparse at best. This is rather a pity, since children's librarians deserve a more authoritative and definitive assurance than I can give them that engaging in the prevailing practices of their trade will not put them or their libraries at risk. As it is, most children's librarians that I speak to or whose e-mail postings I read seem unaware of, anxious about, or dismissive or defiant of the restrictions on their activities potentially imposed by copyright.^N1 All believe their activities to be right and fair, but none seems confident that publishers or courts will agree.

The Actions

Children's librarians resemble non-librarian story-tellers and musicians, and are unusual among librarians, in that a good deal of their activity involves public performance, and with that, the public performance and display of copyrighted works, often in adapted form. Consider the following practices, some common, some rare or hypothetical, but all of which raise broadly similar issues.

Librarian Ruth recites stories written by contemporary authors. Sometimes she recites them verbatim, sometimes she adapts them, sometimes she inadvertently alters them.
Librarian Ed uses contemporary picture books in his story times. Finding the illustrations too small for his audience to see, he enlarges the pages on a copy machine, then colors the copies by hand to match the originals as closely as possible. (When his library buys that color copier they have been asking for, this will become much easier.)
Fiona deals with same problem more laboriously by using enlarged xerographic copies of the original illustrations as patterns from which to make felt-board creations. Sometimes these reproduce the original illustrations closely, often they simplify them, occasionally they even improve on them.
Tina, being a recent SILS graduate with a mechanical sensibility, prefers a technological solution: she copies the illustrations onto transparencies and projects them. When she finds time, she will scan them, touch them up in PhotoShop, and use presentation software to display them instead. Some day she may even animate them.
Vera, working in a town with many two-income families, finds that many more parents wish to bring their children to the public library story hours than can find the time to do so. She arranges to have her story hours videotaped (including a good zoomed-in closeup of every page in the book she is using), then places the videotapes in the circulating collection and occasionally broadcasts them on local-access cable.
Steve is more a dramatist than a story-teller. He runs a Reader's Theater group among his young patrons, for which he writes scripts adapted from published stories old and new. He also stages puppet shows, and writes similar scripts for them. He would like to pool them with similar scripts by other librarians.
Mary is a musician, and accompanies her story-hours with a good deal of music. The favorite songs this month are taken from Disney's Pocahontas.

Ruth the Reciter, Ed the Enlarger, Fiona the Felt Artist, Tina the Technophile, Vera the Videotaper, Steve the Script-writer, and Mary the Musician. Which of these librarians should be living in fear of the law? (I forbear to mention here Diana the Dial-a-Story provider, reputedly already on the run.)^N2

Are these Actions Subject to Copyright?

Fig.1 One must first ascertain if a prima facie copyright infringement has occurred under 17 USC 106, the enumeration of exclusive rights granted to authors and their contractual assignees. It would appear that in each case it has, that is, that the activity should be placed in Block A in Fig.1. I shall not attempt to justify this conclusion in detail: it is enough to say that, in light of the definitions of "publicly," "perform," "display," "derivative work," "reproduce," "pictorial work," etc. in 17 USC 101, it may be asserted that Librarian Ruth has performed a (literary) work publicly, and that some of her impromptu alterations may qualify as derivative works; that Ed has gone further and also reproduced and publicly displayed a pictorial work (his hand-colored copies probably qualify as poor reproductions, for that is their intent, rather than derivative works); that Fiona has gone further still: performing literary works, reproducing and displaying pictorial works, and preparing derivative works (her felt creations, though substantially similar to the originals, are not intended to reproduce them); that Tina, having begun at Ed's position, is moving towards Fiona's and beyond, especially if Tina yields to temptation and further reproduces, distributes, or transmits her scanned, altered, and animated images; and that Vera has already reached that point, performing publicly, displaying publicly, reproducing, and distributing protected works. Steve regularly produces derivative works, and distributes and performs them; Mary only performs, but some of the music that she performs is some of the most closely guarded and valuable copyrighted material available. The only exclusive rights not infringed by one or the other of these librarians are the special artist's rights of attribution and integrity specified in 17 USC 106A, since none of the works qualifies as a "work of visual art" under the definition given in 17 USC 101.

Are the Actions Specifically Exempt?

Secondly, one should consider whether any of these seemingly infringing activities has received a specific statutory exemption under 17 USC 108, 109, or 110, that is, whether it falls into block 2 in Fig. 1. The library photocopying exemptions in section 108 may be dismissed at once: none of the exemptions come close to making any provision for copies to be used as display aids, or for copies to be used in the preparation of derivative works.

Paragraphs (c) and (d) of section 109 are potentially more relevant: relevant in particular to the display of picture-book illustrations during story telling. Paragraph (c) represents a vital exemption to the exclusive right to display. The lawful owner of a copy of a work, or a person so authorized by him or her, may

display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

Even narrowly interpreted,^N3 this provision legitimizes Ed's, Fiona's, and Tina's (though not Vera's) methods of display--provided that the copies that are actually displayed are "lawfully made," a fact not yet established.

Paragraph (d) of the same section, it should be noted, removes the exemption granted in paragraph (c) for copies legally obtained but not actually owned--those borrowed from a library's collection, for example, or from a fellow-librarian. Such loans are very common, and most such loans to children's librarians can plausibly be construed as granting authorization to display the book (especially if the book is one of the extra-large versions intended exclusively for display), but there are conceivable circumstances in which paragraph (d) might nullify (c).

Of the many educational, religious, and charitable exemptions granted in section 110, only that given by paragraph (4) is potentially relevant. Paragraph (4) "largely revives the approach of the 1909 Act toward nonprofit performances of music and other nondramatic works,"^N4 exempting non-profit, non-commercial performances for which none of the performers is paid. It is not clear from the language of the Act itself whether the salaries received by librarians who tell stories as one of several professional duties should be regarded as "payment" under the Act or not, and thus whether any of our named librarians' performances are exempt. I presume that they are, in default of evidence to the contrary. Professional story-tellers paid by the session, on the other hand, whether paid by a library, shopping mall, or bookstore, are presumably not exempted by this provision from liability for infringement of performance rights.

In sum, librarians can claim a statutory right to display pictorial and other works (if they can establish the legality of the copy); and may also be able, if somewhat more dubiously, to claim a right to perform copyrighted nondramatic works. If they may be so interpreted, the two exemptions in 17 USC 109(c) and 17 USC 110(4) allow a basic book-based, free-admission, public-library story hour, complete with music, and regardless of the copyright status of the works used. Unfortunately, only Ruth the Reciter and Mary the Musician are largely exonerated by these exemptions. The other librarians need to resort to a claim of fair use.

Do the Actions Constitute Fair Use?

I believe that a successful fair-use defense can be made for most if not all of the practices in question, but the case is sufficiently marginal (both to the "core" examples of fair use and to the copying-oriented bulk of the work on the subject), Congress sufficiently remiss in refusing to provide a coherent statute, and the case law sufficiently at odds with itself that I have not been able to achieve even a modicum of assurance that others will see the issues in the same light. I should say that I chose these practices to analyze because a clarification of their status was urgently needed, not because I had such a clarification to hand, or could be confident of producing one.

The Four Criteria

Purpose and character of the use. As usual with library practices, a case for fair use finds its surest footing on the first criterion. The character of the use is entirely non-commercial (even when day-care story-times are involved), and the purpose demonstrably educational. The fact that the material used and the manner of use are both designed to be entertaining is irrelevant, as is the fact that parents may have no other purpose in bringing their children than to have them entertained and distracted for half an hour. After all, the only way to educate three- and four-year-olds is to entertain them, and story-telling, finger- and puppet plays, sing-alongs, and so on all have demonstrable benefits for children's attention span, self-discipline, social and mental skills, culture, and knowledge--as do Reader's Theater sessions by older children. This purpose may be somewhat diluted in a commercial context (story-times held in bookstores, for example), but not so as to obviate its value.

More importantly, the use is a productive one not only in the broad sense that it contributes to knowledge and the useful arts and "increases the benefits [that] the public derives from the...work",^N5 but also in the narrow sense that it does not involve reproduction for its own sake, but reproduction only incidentally and only as a means to producing another work or works.^N6 Some of the uses (Steve's, Mary's, Ruth's, potentially Fiona's) do not involve reproduction at all, or do so only as an aid to the process of adaptation or arrangement. It is often noted that before the arrival of photocopying distorted the legal landscape, mechanical reproductions as such was always an infringement: all of the core cases of fair use (commentary, criticism, news reporting, even satire and burlesque) involved the use by one author of another's work, not the substitution by a user of a copy for an authorized original. Whether one considers the derivative authors' works in this case to be the actual artifacts (Fiona's felt, Tina's transparencies, Steve's scripts) or, more truly, the performances and displays that they allow, the librarians' actions (even Ed's enlarging) do not consist of mere reproduction but of real use, and their purposes could not be accommodated by the purchase of additional copies of the work.

The Nature of the Copyrighted Work. There are admittedly ways to interpret this criterion to the detriment of a fair-use defense: on the scale between creative works and factual works, most children's picture books (Ruth, Fiona, Tina, Vera), stories (Ruth, Vera, Steve), and music (Vera, Mary) lies at the usually more protected creative extreme. But the assumption that greater protection intrinsically accrues to fictional works cannot always be sustained. It was, for example, contradicted by the Sony decision, partly on the grounds that works intended originally for entertainment are susceptible also to use by serious researchers, critics, and teachers. I would argue, on similar grounds, that inasmuch as entertaining works serve educational purposes in the context of a library story hour (as asserted above), the public benefits arising from such use should incline the courts to grant relatively free public access to those works. The "nature" criterion turns against fair use only if considered in isolation from the other criteria, especially the first and fourth.

On rather shakier ground, one might argue that in the case of picture books, the "nature of the copyrighted work" is that it is designed to be used exactly as it is being used: to be displayed and recited to a group of children. This is the typical (if not the only) use for picture books, as publishers occasionally recognize by printing oversize "Big Book" editions specifically for story-telling use. The display and (probably) the recitation themselves are exempt uses, the various reproductions and adaptations merely the necessary expedients adopted so as to accomplish those uses. One might even compare as analogous the software exemption in 17 USC 117 that allows the owner of a copy to adapt it to his or her own machine: Fiona, Ed, Vera, and Tina do something similar, though without express warrant.

The amount and substantiality of the portion used. This criterion is another that is meaningless in isolation. There is obviously no point to telling part of a story, re-writing only a story's ending as a puppet show, singing only one stanza of a song, or showing only the first page of a picture book, or even any reason to believe that the use would be less infringing if such a course were adopted, unless the amounts used were so small as to be useless. Music and special works like picture books are usually considered to be seriously and substantially "taken" by even a small portion of the whole. But, except in Vera's case and perhaps Steve's and Tina's, these librarians are not engaged in the kind of reproduction (i.e. that which produces a rival product) for which the extent of reproduction matters: i.e., the character of their use is such that wholesale copying has no more economic impact than very limited copying would have. If the character, purpose, and economic impact of the uses that we are considering are such as to establish its legitimacy, then the fact that works are used in their entirety should be irrelevant.

The effect...upon the potential market...or value. According to the narrowest and most blinkered reckoning, of course, any non-compensated use of a copyrighted work represents lost revenue. But according to the more usual interpretation of this criterion, almost universally regarded as the most important and determinative of the four, it is the net impact that must be assessed, not (as it were) the gross: the possibility of a positive tradeoff in economic as well as broader societal terms should be entertained. And a positive impact is in fact the likely result of at least some of the practices that we are considering. Publishers of picture books in particular should be glad to have their books used in story times, whatever means are employed to display them, since every such use virtually guarantees a new sale among the parents, and often several sales. The only conceivable direct losses may occur in connection with "Big Book" editions, for which the home made displays could substitute.^N7 But there are only about thirty-five to forty of such books in print, publishers have shown no signs of wishing to market them extensively, and libraries generally buy copies of all available "big books" regardless of whether they have previously made shift with home-made displays. Publishers certainly have not indicated any desire to market poster-sized sheets, felt-board figures or projection transparencies, the market for which Ed, Fiona, and Tina may be accused of having usurped. The same situation holds in the case of puppet-theater and reader's-theater scripts, which Steve, like many librarians, likes to use, but no one sells. While it is true that a user does not gain the right to a certain adaptive use from the fact alone that the owner has not chosen to exercise his rights in that area, the fact that owners taken together rarely or never exercise a particular right does create the presumption that the exercise of that right is not part of the ordinary market for the work, and that the author should not reasonably expect to restrict access to his work for that purpose, or to be compensated for the exercise of that right by a member of the public.

Still, Steve would be well advised to retain all copies of his scripts, and resist his natural inclination to share them with fellow librarians on PUBYAC, lest he seem to be distributing a derivative or even rival product without permission;^N8 Tina, if she digitizes a picture book, puts herself in the position of a potential electronic distributor--if she animates the images, in the position of the publisher of an unauthorized derivative work, which seems a highly precarious position at best; and Vera, I fear, in creating a permanent video version of her performance that can be shown anywhere, both waives the protection of the display and (probably) performance exemptions ^N9 and creates enough of an economic threat to the distribution, video, and audio rights of the author as to nullify or at least render dubious her claim to fair use: once the fourth criterion becomes shaky underfoot, the other three cease to be of much use. Her actions also arguably create the largest public benefit, but, contrary to some analyses, I do not believe that fair use should be thought of as otherwise illegitimate use legitimized by a public benefit larger than the potential benefit to the author, or that fair-use reckoning may best be thought of as a balancing of interests and allocation of costs between owner and public.

Is Fair Use the Sum of Four Criteria?

The language of 17 USC 107 is notoriously vague, its pronouncements notoriously incoherent. In particular, the section declines either to provide any definition of fair use or to provide any way of assessing the comprehensiveness or relative priority of the criteria that it lists. A simple sum, with criteria 1 and 4 being valued at +1 and numbers 2 and 3 conventionally at -1, yields no decision at all as to whether children's librarians' practices are fair. I have assumed that the controlling criterion is the fourth one (economic impact), the first and second criteria (nature of use and nature of work) regarded as bound together in second place, and the third criterion (extent) meaningful only in relation to the latter. This seems to be by and large the most common way that the courts have evaluated the criteria.

Nevertheless, as my references to "reasonably expected compensation" suggest, I have had in mind the specific analysis and definition of fair use offered by Leon Seltzer,^N10 which, though it cannot claim extensive explicit judicial precedent, does offer an admirably persuasive clarity, well rooted in the Constitution and the definitions found in earlier copyright acts. In place of the silence of the 1976 Act, Seltzer defines fair use as

Use that is necessary for the furtherance of knowledge, literature, and the arts AND does not deprive the creator of the work of an appropriately expected reward.... In determining whether the use made of a work in a particular case deprives its creator of such a reward, account should be taken first of the nature of the copyrighted work and then of the purpose, character, and extent of the use.^N11

Under Seltzer's definition, the fourth Congressional criterion becomes virtually determinative, since only use that does not deprive the author of just return can be regarded as fair (unfair uses may be specifically allowed by exemption, of course). The justness of the return depends, in turn, on its conformity to reasonable expectations of remuneration and control,^N12 these varying depending on the nature of the work and its suitability for public benefit if left uncontrolled. The extent of the control that the reasonable author may expect to yield to public use depends on the nature of the work and the nature of the use. The second, first, and third criteria of the Act thus take their natural places and priorities within a coherent account of fair use. Within such an account, we may restate the fair use case for children's librarians as a finding that reasonable authors of children's books should not expect to be able to control children's access to them or children's librarians' use of them, in defiance of public good, within the ordinary contexts of normal library operations.

Verdicts

Appeals and Challenges Welcomed

Ruth's recitations are probably exempt, her alterations constituting no more than the expected personal arrangement to be expected in a performance.
Ed's enlargements, as a straightforward and closely held (not distributed) means of engaging in an exempt use, very probably fall under fair use.
Fiona's felt is probably also fair use, for the same reason, as well as because it represents a derivative creative work for public benefit outside the reasonably expected market for picture books.
Tina's transparencies are probably a fair use much as Ed's enlargements, her altered scans possibly not, her animations almost certainly not.
Vera could take her story-time videotapes away and bury them in the dead of night, but a better idea would be to try to get permission (not always difficult)^N13 not only to keep and circulate them but to broadcast them as well.
Steve's scripts are probably a fair use for the same reason as Fiona's felt.
Mary's singing and song-leading are probably exempt uses.

Notes

Cp., e.g., Walter Minkel, posting to PUBYAC, 30 Jan 1995: "Copyright...has made me think twice about posting my own [puppet] scripts. It would be good if we could resolve the matter somehow, but nobody knows for certain. Some say that if you're not making $$ from the performance, it's OK. But I've talked to several people who have told me the opposite, that for ANY use of copyrighted story (even, for example, a show based on the Paul Galdone or Paul Goble version of a folktale), we're supposed to get permissions from the publisher. Does anyone REALLY know for certain? Plus there are so many uses that cross the line. How about a Dial-A-Story or reading or performing stories on your local cable channel?"RETURN

See Judith Carey, posting to PUBYAC, 26 Jan 1995: "a project...that would entail a toll-free # children can call to hear a bedtime story read." Cp. the posting by Martin Cerjan to CNI-COPYRIGHT, 29 Aug 1994: "A children's librarian...would like to institute a 'Dial-a-Story' program at his library. The idea is that children may dial a local number and be connected with a recording of him reading a children's story or picture book. Before he proceeds, he'd like to know if he may be buying trouble. What if he reads Sendak's 'Where the Wild Things Are' over the phone? Or how about 'Where the Sidewalk Ends' by Shel Silverstein? Does it matter that the stories may come from picture books and that he is not showing the pictures? Does it matter that he works for a public institution?"RETURN

See Gorman, Copyright Law (Washington, D.C.: Federal Judicial Center, 1991), 86.RETURN

Gorman, 89.RETURN

The definition used by the Sony case majority, Laura Gasaway and Sarah Wiant, Libraries and Copyright: A Guide to Copyright Law in the 1990s (Washington, D.C.: Special Libraries Association, 1994), 85; cp. Gorman, 96.RETURN

The definition used in the Texaco decision, and by the Sony dissenters, Ibid.RETURN

Indirect losses, I should suppose, caused by putative damage to a book's reputation as a result of poor reproduction or performance are probably not a copyright matter at all (rather a tort under the Lanham Act), and are in any case highly unlikely: it is the universal experience of story tellers that the exercise of their craft increases the demand for the printed originals on which they draw.RETURN

See Shannon Van Hemert (moderator), posting to PUBYAC 27 Jan 1995: "If a puppet show is based on an original picture book..., can PUBYAC, Nysernet, or the moderator be liable for copyright infringement?" This is, of course, another question, but suggests the concern that seemingly innocuous puppet shows and the like have been causing.RETURN

17 USC 110(4): "performance...otherwise than in a transmission to the public [is exempted]"; 17 USC 109(c): "display...to viewers present [is exempted]."RETURN

Exemptions and Fair Use in Copyright: The Exclusive Rights Tensions in the 1976 Copyright Act (Cambridge: Harvard University Press, 1978).RETURN

Seltzer, 31, 36.RETURN

The similarity of Seltzer's definition to fair use theories based on "implicit consent" is here evident; see Gorman, 94.RETURN

See Bette Ammon, posting to PUBYAC, 3 Sept 1995.RETURN

This document may be linked to, cited, or downloaded in its entirety with attribution and copyright notice intact, all without asking permission; but it may not be mounted for remote access at another site.

Paul Schaffner / pfs@umich.edu / 27 October 1995; rev.3.11.95