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  • I'm sure you have been asked these questions before, but when we've asked others we have had no clear answer. I work in the YS department of a small-town library. To enhance storytimes, I would like to use illustrations from picture books for puppets, flannel boards, and other activities to enhance storytelling.
    Is this considered "fair use"? Also, would photocopies of book covers be permissible in book displays? Thanks for your help.
  • I am going to answer your second question first because it is the easier of the two. In considering the four factors for fair use you should be able to use the photocopied covers for display. Considering the use of the covers does not deny the copyright owner of any additional sale, you are not copying the story, it is for a limited time and for display not consumption or circulation, I do believe that using the book covers is OK.

    Concerning the use of the illustrations for puppets, flannel boards, etc. is different. There is information needed in order to give you the best answer. You do not state whether you are purchasing or making the puppets. Are any of these items available commercially? You do not state whether the books are new fiction, older fiction (classics?) or non-fiction. All these things will affect if the use is fair. If you could expand this information it will be a big help. If not I'll try answering with the information given in a day or two.
  • Some considerations for using picture book illustrations to enhance storyhours.

    Disclaimer re: trademark. Are the characters in the illustrations trademarked in addition to being protected by copyright? Or are the illustrations protected only under copyright? For example, Garfield, Snoopy, Disney characters are trademarked as well as protected by copyright and the rights attached to the trademarked characters may be more stringent than copyright protection. Because I’m not an expert in trademark law, my remarks below apply only to illustrations that are not trademarked.

    Are you or your staff recreating the illustrations as puppets and flannel boards yourselves? Or are you purchasing pre-made puppets and flannel board cutouts? If they are commercially-made and purchased, then your staff is not creating a copy or derivative work, so there would be no infringement on the copyright holders’ rights of reproduction or adaptation. Your use may involve the right of public display, but story-hour public displays would fall under the exception of section 110(4) as long as you are not broadcasting your story hour or paying an outsider to perform at your story hour.

    If you are creating your own puppets and flannel boards, then your use would be a reproduction or adaptation of the original work. The rights of reproduction and adaptation are exclusive rights of the copyright holder under section 106, so you would need the holder’s permission to use unless your use falls under an exception, such as fair use. Assuming that the work is protected by copyright and not in the public domain (i.e., works published 1922 and earlier), you’d need to look at your use in light of the four factors of section 107 fair use.

    Purpose and character of the use – story hours are usually nonprofit educational events, without commercial purpose. Assuming that you’re only making a single puppet/flannel board for each component of an illustration and that these puppets/cutouts are only for the library’s use in a non-broadcasted storyhour, I believe that your use would lean toward fair use for this first factor. [Note, however, if you made multiple copies of each puppet/flannel board and started to lend or rent them out or sell them to other groups to use, then your use would likely not be fair use.]

    Nature of the work – picture books usually are more creative than factual, so this factor would not lean toward fair use

    Amount and substantiality – if you use only a small amount from the book’s illustrations in making your puppets and flannel boards, your use is more likely to be fair use. On the other hand, if you create separate flannel board cut-outs to duplicate every illustration in the entire book, your use would be less likely to be fair use.

    Effect of your use on the commercial market of the book – does your use deprive the copyright holder of commercial gain they would otherwise have received if you licensed the rights? If you are only creating the puppets and cutouts for in-library use by library staff, it seems that the effect on the market would be minimal. You might even increase the market for the book by promoting it in storyhour. Also, if your library has purchased at least one copy of the book, the copyright holder has received some commercial gain. And, many libraries purchase multiple copies of picture books that are popular for storyhour use.

    In my opinion, these factors add up to fair use. [Note: I’m assuming no multiple copies, no distribution/sale to others, no videotaping storyhours to broadcast or distribute the videos, etc. Any of these could tip the balance against fair use.]
  • I have really nothing substantive to add, but I would like everyone to think about this.

    This is a question that comes up often and there seems to be great fear on the part of teachers and librarians that they are infringing copyright. Years ago, I doubt that we had questions about putting actual book covers in the library display case and that was a public display. One wonders why we are so concerned now.

    Remember that the purpose of the copyright law is to advance the progress of science and the useful arts. The point of the law is to advance learning for the public. Socially beneficial uses are favored. The activity described in the question is and should be completely legitimate.
  • The public display of actual book covers seems to be specifically authorized by section 109(c) of the Copyright Act -- that portion of the so-called First Sale doctrine that makes an exception for to the public display right for display of lawfully made copies. So the difference that causes concern in this question is the use of a photocopy for display; is that a legal copy for purposes of the exception? The copying would have to be justified as fair use, and I think that is a pretty strong argument for all the reasons mentioned above.

    I am less convinced that fair use is a slam dunk regarding the puppets and flannel boards. Fair use for derivative works seems much more contested, especially since courts have never clarified where a derivative work stops and a transformative fair use begins. I agree that this should be considered fair use in this situation, but am troubled by the words "potential market" in the fourth fair use factor. A copyright owner might argue that it has the right to decide when and if puppets should be made from its characters and to oversee the quality of those derivative works. So while both activities in the auestion probably should be regarded as legitimate, I don't think they are on equal footing in terms of a fair use argument.

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