Editor’s note: Also check out Carrie’s tips on using images in programming materials.
Many librarians like to include film or DVD screenings in their library programs. Can you do this without first obtaining permission from the copyright holder? It depends. In general, public performance rights (PPR) are necessary for any screening that does not take place in the face-to-face classroom or is not a key element necessary to meet a teaching objective in an online or digital course offered by a non-profit educational institution. Because the performance of a motion picture is a primary way that motion picture companies generate revenue, the rules around PPR tend to be strict. Thus, the exception to the exclusive right of public performance is narrow (see Section 110 of the copyright law for some fascinating reading). Even though your programming event has educational value, under the copyright law it does not fall into the restricted category of “non-profit, education.”
You have a few options, some straightforward and one more ambiguous and cautionary. The most straightforward option? Eliminate the film screening from your program. Alternatively, you can contact the rights holder and ask permission to screen the film at your programming event. The rights holder may deny your request—this would more likely occur if the title in question was recently released and currently generating revenue. The rights holder could give you permission but ask that you pay a fee and engage in a license agreement. You would provide the rights holder with information about your event—where will the event take place, how many people will attend, whether there will be an admission fee, and so on. The license would apply only to that particular event—in other words, you could not screen the title in the future under the same license agreement. Remember that you can negotiate the license fee and license terms. You have a say in what terms are allowed.
Locating the rights holder to ask permission can be a puzzle. My best advice is to consult Swank, a distributor that manages rights for thousands of Hollywood films, if your film is a feature film. If Swank does not manage the performance rights, they will know who does. If your film is not a feature film, contact the company that is distributing the film. Alternatively, you could post your question—“who owns the PPR rights to Silent Spring?”—on the VideoLib discussion list. Many subscribers on this list are distributors who sell educational or documentary films. They have a wealth of knowledge about who holds rights and how to contact rights holders.
Another option is to buy the video or DVD with PPR at the point of purchase. Many distributors will sell their titles with PPR for a higher price. If you choose this alternative, you will have PPR for the title as long as you own the copy.
The fair use exception also should be considered. The fair use exception allows one to use an exclusive right—like PPR—without the prior permission of the rights holder. This means that you have made a decision that the social benefits of using the film override the need for prior authorization and/or payment. The factors that may favor a fair use decision are those particular to your situation. For example, your event may be a free event where no admission is charged. Perhaps you plan to show only portions of the film. Maybe the film is rather obscure and is not financially viable to the best of your knowledge. You are unable to locate the rights holder or the rights holder does not respond. Perhaps the screening is one to educate the public about a public policy issue important to your community. The screening could be very instructional—such as teaching library users how to complete an online Medicaid form. The purpose of the copyright law is to advance learning, so reasons for using the exclusive right for educational, learning or socially beneficial purposes are the first signs that your use may be fair. If you are not sure, you can always consult with librarians with significant copyright knowledge who monitor a forum for copyright questions. Legal advice is not provided, but the librarians can help you think through the situation and provide informed opinion. Try the forums in the Copyright Advisory Network.
Next week: Using book covers and other images for publicity purposes.
