April 15, 2014

What Rights Come with That Movie? | Backtalk

Imagine that you bought a new jacket on Amazon.com and received an email a month later from the manufacturer telling you that you paid the wrong amount for the jacket and that you owe the company several hundred dollars more. This may seem implausible, but for academic libraries that buy DVDs through distributors like Amazon.­com, it is a recurring problem: after buying DVDs at retail prices, they get an official-looking email saying they owe more.

This bizarre double-billing occurs owing to fundamental misunderstandings over the legal rights granted by the Copyright Act to both rights holders and educators. Rights holders believe they are entitled to extra fees from schools and other institutions, and libraries too often believe they must pay up. It’s a recipe for needless spending, something libraries can ill afford. At the same time, if filmmakers want to recoup the high cost of production, they must understand when the law does (and does not) allow them to charge different prices for their work.

Licensed to lend?

Confusion between a sale and a license probably explains at least half of the misguided after-the-fact demands made by video vendors. The distinction is crucial: if the transaction is a sale, then the library now owns the copy and can do any lawful thing with it, including lend it to faculty to show in their classrooms (more on that below). If it is a license, vendors can set whatever limitations they like and even sue libraries for exceeding them.

Vendors seem to believe that by designating copies (whether in their own catalogs or by notices printed somewhere on the DVD packaging) as “licensed for personal use only” and the like, they can unilaterally transform a sale into a license and bind the purchaser to their terms. A typical vendor email will say, “You purchased a video that is licensed solely for personal use; you cannot screen that video in the classroom.” In reality, courts have rejected these tactics for more than 100 years, since the Supreme Court refused to enforce an inscription on the inside of a book that purported to bar reselling the book for less than $1. Companies can certainly use licensing to control how media is used—witness the software industry’s successful use of “click-thru” licenses to block resale of expensive programs—but a unilateral declaration is not enough.

What is public performance?

The second misunderstanding that fuels vendor demands for more money from libraries has to do with “public performance rights” (often referred to by the shorthand “PPR”). Even if a work is purchased, rather than licensed, copyright does require additional permissions for the right to “publicly perform” certain kinds of works. Generally speaking, even if you lawfully buy a copy of a film, you need permission from the copyright holder to show that film “publicly” (that is, in a group beyond an ordinary gathering of friends and family).

Screening films in a classroom might qualify as a public performance (and so require purchase of PPR) if not for a vital legal provision known as the classroom teaching exemption. As codified in Section 110(1) of the Copyright Act, it allows teachers to show lawfully made copies of films (and make other “performances”) in their classes without PPR. While other campus performances may require PPR—a screening of Miracle on 34th Street at the student center theater to help students relax during winter finals season, for example—the core teaching uses that academic libraries support receive special legal protection.

Therefore, if a teacher or library truly owns an item (rather than licensing it), whether it is bought from a distributors’ website, a store, or a garage sale, PPR are not needed to show the film in class. Congress provided very specifically that teaching is different and gets privileged treatment.

Some filmmakers and distributors seem to be unaware of this provision. Rather than charging a uniformly higher price across all channels, including value-added content with educational editions, or using real, enforceable licenses to support differential pricing, they try to have it both ways: sell the same product to consumers and to libraries but charge libraries more by “including” unnecessary rights.

This tactic is not limited to a few niche educational vendors. Even famed indie filmmaker John Sayles’s website states in the Educational DVD Release announcement for Amigo that “screening a ‘retail consumer DVD’ in a classroom is a violation of copyright law.” This is simply not true. Sayles and all the filmmakers and vendors who serve educators are welcome to charge any price they deem fair for their films, or to “include” whatever rights they believe a given purchaser may genuinely require, but they are not free to mislead consumers about which rights they must have. Knowledge is power, for both sides of the librarian-vendor relationship, and it’s past time both sides learn their rights.

Laura Jenemann is Media Librarian and Liaison Librarian, Film Studies and Dance, George Mason University, VA. Brandon Butler is Practitioner in Residence, Washington College of Law, American University, Washington, DC. They have both written previously on the topic of classroom exemptions for public performances and displays. We welcome opinion pieces for BackTalk. Please send them to mschwartz@mediasourceinc.com

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Comments

  1. Greatly appreciated having this topic covered; was the intent simply to address face-to-face courses? Many universities offer at least as many online courses as face-to-face. What are the authors feelings about the implications for creating streams, housed on secure servers, and whose links to the streams are killed after a couple of weeks–hidden behind the CMS firewall so only students in the course can view?

    • Hi Ana,

      You’re right—this article is about showing DVDs in face-to-face classrooms. The issue of streaming films has been addressed in a few other contexts. The library community described its norms around this kind of activity in Principle One of the Code of Best Practices in Fair Use for Academic and Research Libraries, available at http://arl.org/fairuse. As I read that principle, online streaming with proper measures in place to ensure targeted access will often qualify as a fair use.

      There is also an older document written by Jonathan Band, Kenny Crews, Peter Jaszi, and myself, that addresses the copyright issues with streaming video; you can find it here: http://www.arl.org/publications-resources/1669. That piece predates the code of best practices, though, and is starting to look a bit dated now that the Code is out.

      There’s also the AIME v. UCLA case, which, although it never saw a final decision on the issue of fair use, did feature a federal judge explaining, in a few sentences, why there’s a reasonable argument that educational video streaming is a fair use. The text of that decision is here: http://www.nacua.org/documents/UCLAStreamingMediaCopyright2012.pdf.

      I hope that information is helpful.

  2. Diane Gurman says:

    Hi Brandon and Laura. Could you give me a couple of citations for cases that say a unilateral declaration is not enough? Are there any that deal specifically with DVDs?

    Thank you.

    • Hi Diane,

      The paradigm case is the original case that established the first sale doctrine in the US, Bobbs-Merrill Co. v. Straus. You can read more about that case here: http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus. In that case the Supreme Court refused to enforce a notice on a book that purported to bar resale for less than a given price. There are some interesting wrinkles in that case, though, and of course it’s also very old, so a more recent case might be more useful.

      Probably the most high-profile recent case where a court refused to enforce a unilateral declaration of license was the UMG v. Augusto case (more about that here: http://arstechnica.com/tech-policy/2011/01/appeals-court-upholds-first-sale-doctrine-for-promo-cds/), in which the 9th Circuit ruled that promotional CDs emblazoned with the “For promotional use only. Not for resale.” notice were nevertheless free for resale because the circumstances surrounding distribution of the CDs (the label never expected to get the CDs back, e.g.) showed that in reality the CDs were being given away, not licensed.

  3. Andy Moore says:

    Regarding justifications for differently licensed/priced educational DVDs, would the following paragraph on a filmmaker’s website on the Ordering Policies page hold water?

    “You might not know it, but when you buy a DVD, you are only buying the right (license) to use that DVD in a specific way. Just because you have bought a DVD, it doesn’t mean you have the legal permission, for example, to show it in a movie theater and charge admission. Is this fair? We think it is. Making films is very expensive and we rely on sales to recover the enormous costs of making each of our films. If you are just one person, it isn’t fair to ask you to pay a large amount, so we keep the home-use-only price low. On the other hand, if you are an educational institution (with either a K-12 budget or a college/university budget) it is likely that many more people will view the DVD over its lifespan, and the higher price reflects that. What if you have limited resources and still want to get some public use rights? Please feel welcome to contact us. We made these films to be seen and to help people.”

    Is there an edit of this that you think would fairly support a “sliding scale” approach like this? Educational sales, especially academic sales, literally put food on the tables of independent filmmakers and directly support their work, benefiting educational institutions that use their work all the more. You see that they also offer price flexibility to smaller institutions on a case-by-case basis. Any flaws in this scenario?

    I appreciate all feedback!

    • Hi Andy,

      Your suggestion to charge on a sliding scale or differentially is a decision that distributors often make, and there’s nothing wrong with using that model to help recoup the significant cost of making educational films. The concern we have is that distributors state that screening ‘a retail consumer version’ of a DVD in a classroom is a violation of copyright law, or they make blanket statements that PPR is required for classroom use. These statements are not accurate. Odds are, a retail consumer version you buy through normal channels is a purchase, not a license, and the owner has all the default rights that go along with it, including the 110(1) right to perform the work in classroom teaching.

      My recommendation (and this is just Brandon speaking, now) is to avoid invoking rights and licenses and rely instead on what I think is a perfectly legitimate argument from fairness. So, instead of the first two sentences, I would say, “You might have noticed we charge different prices to different kinds of users even though every user gets the same film. Is this fair? We think so…” and then keep the rest of the paragraph.

      We hope that helps.

  4. So, how does this apply to K-12? I would assume bringing in my copy of “How the Grinch Stole Christmas” as a treat for the students is a no-no, but I can show Ken Burns’ series on Prohibition if I’m teaching that?

    • Hi Cindy,

      Section 110(1) says performances don’t require a license if they are made “in the course of face-to-face teaching activities of a nonprofit educational institution.” The question is whether you think the Christmas treat context qualifies as “face-to-face teaching activities.” I’m not your lawyer, but hopefully that helps you think about this.

      Best,
      Brandon

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