Promotional and Other Uses

There are a number of uses of materials that folks make that are not directly connected with a strictly educational purpose, such as promoting events, classes, or programs, designing department t-shirts, or offering fun programming like a movie night or a dance party. These "education-adjacent" uses present some unique considerations regarding copyright.

Sharing Readings

While Macalester College is a non-profit educational institution, when use of copyrighted materials happens outside of the physical or online classroom and in college-sponsored programs, conference presentations, meetings, or other events, provisions for use allowed by the Classroom Use Exemption (17 U.S.C. § 110 (1)) do not apply. Copying of readings may be allowed, but you have to think about it through the lens of fair use (17 U.S.C.§ 107) 

The EASIEST OPTION - Don't Make Any Copies!

Copyright issues with materials usually arise because you're making copies. So, make life easy on yourself by not making copies.

How can you share materials without making copies?

• If the resources are publicly available online, linking to them is always ok.

• If the readings are available online via a college subscription, and your audience is current students, faculty, and staff, link to them. Look for a "Permanent Link" or "Permanent URL" (or PURL) to add them to a web site or online document, or contact a library staff person for help. You can also share citations for the readings with participants and collaborate with a Research & Instruction Librarian to let participants know how to use the citations to find the readings using resources available through campus subscriptions.

• For events open to community members residing in Minnesota, you can use eLibraryMN.org resources to share links to readings or other materials. Your Research & Instruction Librarians can help you with this.

• It is sometimes possible for the library to purchase access for multi-user ebooks of items you wish to incorporate into your program. This is not usually available for straight-up textbooks, but can be an option for other books, when your audience is current Macalester staff, students, and faculty.

• You can have participants purchase their own copies of books or articles

• You can put materials on reserve (physically) in the Library when your audience is current faculty, students, or staff.

If you have to make copies to share materials with program participants, you will have to think about whether such copies are already permitted by law, or whether you will need permission from (and usually payment to) the copyright holder.

Fair Use

Fair use (17 U.S.C.§ 107) is a provision in the law that allows some copying without permission or payment. It is sometimes legal to make fair use copies of materials for participants in a non-profit instructional environment. It is also true that not all non-profit instructional copying is a fair use, particularly outside of the literal classroom and the College's formal curriculum.

At Macalester College, program leaders are trusted to make their own reasonable and informed choices about fair use which requires knowing something about how fair use works. Your Research & Instruction Librarians can help you sort through the various options for resource access, including fair use.

Permissions

Sometimes, there is no way to share materials without making copies, and fair use doesn't seem to apply to the copying. Then, you may need permission to make the copies or you may choose to find alternative materials. Library staff can help you obtain permissions for use of materials in Macalester programs. There may be fees involved.

Using Images

Once the use of images moves outside of the physical or online classroom into promotional materials or other uses, provisions for use allowed by the Classroom Use Exemption (17 U.S.C. § 110 (1)) do not apply. Use of images may be allowed, but you have to think about it through the lens of fair use (17 U.S.C.§ 107). 

Display from physical copies is probably okay?

Sometimes uses that seem very similar are treated differently by the law. For example, showing an image in a non-profit face-to-face classroom is permitted by the Classroom Use Exemption, but showing the same image, in a very similar instructional setting that is not technically a formal classroom is not so clearly allowed. Display of images at events, in meetings, etc. may be allowed, but under fair use. Most of the time, showing things to participants as part of a larger program is okay as the social benefits likely outweigh the economic interests of the rights holder, and the scope of the use is limited.

Examples:

• Holding up illustrations from a book, or passing books, prints, maps, or other hard-copy images around a room

• Using a traditional overhead projector, slide projector, or a document projector to display images

Because we are working with fair use and not the Classroom Use Exemption and the TEACH Act, the delivery method is less relevant in that fair use is technology-neutral. The same considerations apply when the program content is delivered online. However the extent of potential market harm may be less clear and online delivery or presentation on the open web may change one’s fair use assessment.

Copying or scanning images

Fair use allows some copying of images for teaching, commentary, and criticism, especially in the non-profit context, but promotional use for materials like posters or t-shirts, even in an educational setting, does not really fall into that category. Courts have allowed fair use copying of images in some contexts, sometimes even commercial ones, especially when accompanied by criticism or commentary. When images are being used as illustrations and there is little or no direct commentary or critique of the image itself, then that use may be less fair. It is always good to seek permission from the copyright holder to use an image as an illustration or as part of a product design. If the holder denies your request or offers terms that are unrealistic for you to meet, you can still consider your use through the lens of fair use. 

Posting images online

Sharing images online is also usually a question of fair use. Consider if linking to a legitimate, publicly available image is an option for your needs. Otherwise, online use is legally considered to be making a copy, and may impact the extent of potential market harm. 

Making use of open-licensed content

There are a variety of licenses for images that one may be able to purchase or grant use without seeking express permission. Probably most notable is Creative Commons, an organization that makes it easy for copyright holders to share their work by assigning structured licenses that grant clear permissions and criteria for the potential user to consider.  The licenses are not an alternative to copyright; they are an option for sharing works, and they  rely on copyright. Only a copyright owner, or someone authorized by an owner, can make a work available under a Creative Commons license.  There are some additional things to consider when using Creative Commons-licensed items, such as all Creative Commons licenses explicitly preserve, and do not override existing copyright exceptions and limitations like fair use and other similar provisions. Both creators and users should know this. For example, "No Derivatives" licenses don't block derivative uses like quotation or adaptation, if allowed by fair use. And "Non-Commercial" licenses don't block commercial uses that are otherwise allowed by law. There's much more information in the Creative Commons FAQ.

Using Video and Audio 

Showing a motion picture or playing pieces of music at Macalester outside of the classroom or other educational programming is very often considered to be a "public performance," but not always. The public performance of a copyrighted film must be made with permission from the copyright owner, often obtained through a licensing agreement such as those provided through institutional streaming services and contracts, or obtaining individual public performance rights, or consistent with one of the exceptions or limitations in the copyright law. Music is a little bit different, but many similar concerns apply.

The law provides many opportunities for showing films or playing music at Macalester, but one usually must begin with the following assumptions:

• Most audiovisual works used in programs at Macalester are protected by copyright. Copyright protection lasts for many decades, and usually only some of the earliest motion pictures and early 20th century music are in the public domain;

• Many performances of copyrighted works outside of the classroom are considered to be a public performance. A performance can be “public” if it is held in a place open to the public or at any place where a substantial number of persons outside of a normal circle of "family and friends." As a result, a “public performance” can take place in a classroom, a dormitory lounge, or a campus theater or auditorium.

Nevertheless, copyright law includes several possibilities for properly performing copyrighted audiovisual works.

Please note that this discussion is only about the “performance” of the work. Making a copy of all or part of the work must be addressed separately, usually through the lens of fair use (17 U.S.C.§ 107). 

Perform a work privately, and not publicly

A performance may not be “public” if the location is closed to the public, and the audience is not a “substantial” number of persons. Therefore:

• The smaller the viewing or listening group, the less likely it would be considered a public performance.

• Gathering a large group of friends or using a common room in a residence hall can make the performance “public."

• Open invitations and announcements to the broader campus community can make a performance “public.”

How big of a group is "large?" How public is a dorm lounge? These questions are not answered in the law, and are part of the judgement call one needs to make based on each individual situation. Reach out to a Research & Instruction Librarian for guidance and help obtaining permissions if needed.

You can obtain permission

The creator of the work is typically the copyright owner or other rightsholder. In the case of motion pictures, movie studios usually hold rights in the works they create or distribute. Smaller scale documentary films often include information on public performances and screening rights on the film's website, and may be willing to offer low cost performance rights for college screenings. In the case of music, playing and performing music is often covered by blanket licenses purchased by the college from ASCAP, BMI, or SESAC, the major music performance rights management companies.

• You may be able to secure permission directly from the rightsholder. Library staff can help you obtain permission as needed.

• Some suppliers of audiovisual works offer a limited public performance license for a fee, or they sell the work to colleges with a performance license. Often the library has already purchased such licenses;  consult with library staff about whether our ownership includes performance rights.

• Limited public performance licenses may be available through institutional streaming services such as Alexander Street Press' Music Online, Swank Motion Pictures, Films on Demand, or Kanopy or through blanket licenses with ASCAP, BMI, or SESAC that are managed through the campus' Business Services.

• Some films and music may be copyrighted, but licensed for broad uses through Creative Commons.

Perform a work that is in the public domain

Copyright protection does not last forever, and when the copyright has expired, the work may be used without copyright restriction. For example, any work published in the U.S. before 1927 is in the public domain and may be used freely.

The Internet Archive and other organizations facilitate finding and using many films and other works that are in the public domain. Additional sources of films that are in the public domain include: Festival Films; Desert Island Films; Reel Media International; BuyOut Footage; and public domain movies.

Works created by the federal government are not protected by copyright and are in the public domain. However, works commissioned by the federal government may have copyright protection. Also, works produced by state, local, or foreign governments may have copyright protection. Federal government works in the public domain could include many military films and NASA space exploration footage.

What about streaming media?

Much of the media we use in real life today present some legal wrinkles that "old school" physical media don't.

Online media

Sites like YouTube and Vimeo have Terms of Service that say they are for personal use only. Some even specifically say they are for personal, non-commercial use. Subscription services like Netflix, Amazon Prime, and others also have Terms of Service, almost all of which also limit use to personal and/or non-commercial use. Some have even more specific limitations than that. It's unclear whether the terms of service on a free site, where you never clicked "I Agree", are legally enforceable, but with subscription services, you usually did actively agree to the terms of service at some point.

Is showing a movie using a Netflix account at a department program open only to current students, faculty, and staff a personal use? No one really knows. Is streaming music from Bandcamp at an alumni party on campus a non-commercial use? Also unclear. Most of the folks who run these services have not directly addressed such issues. Certainly it's common practice to play public online content, such as YouTube videos, in many different public settings, though not all such users may be aware that the terms of use present questions about such uses.

It's important to note that limitations that you agreed to in a service contract or at the time you purchased digital content are not copyright issues. They are contract issues, and so present risks related to your contractual relationship with the provider of the content, such as account termination.

Many people do play YouTube videos in a variety of settings, or play music they downloaded from iTunes or stream from Spotify. They may or may not be aware of the contract law issues that those uses present.

Media files like MP3s or movie files

Purchased copies of media files often come with their own terms of use, which you usually agreed to at the time of purchase, and which also usually say the files are for personal and/or non-commercial use only. Again, whether instructional use is permitted under those terms is an issue of contract law more than copyright.

If the files were not purchased, you may not have to worry about contractual limitations on your use, but you do still have to grapple with the  copyright-law question of whether playing questionably legitimate copies in class is fair use.

Note: ripping or otherwise digitizing audio or video from source media is quite likely fair use sometimes. But this proposition is contested by media companies, and some media like DVDs and Blu-Rays present additional legal issues related to "anticircumvention" provisions of the Digital Millennium Copyright Act (DMCA).

Use fair use

Fair use is a provision in the law (17 U.S.C. §107) that allows some copying without permission or payment. It is sometimes legal to make fair use of music performances or showing films in a non-profit instructional environment. It is also true that not all non-profit instructional display or performance is a fair use, particularly outside of the literal classroom.

At Macalester College, program leaders are trusted to make their own reasonable and informed choices about fair use which requires knowing something about how fair use works. Your Research & Instruction Librarians can help you sort through the various options for resource access, including fair use.