Educational displays/performances from copies "not lawfully made"

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  • I hesitate to begin yet another thread on Sec. 110, but I'm honestly not looking to start an argument! I'm just hoping to get a survey of opinions, and I expect that many of these may differ from my own.

    I'm wondering how others interpret the Sec. 110 restriction--for both face-to-face educational performances/displays and for digitally transmitted performances/displays--that says that the exemption doesn't apply if the copy of the work used was "not lawfully made" and the person or transmitting institution "had reason to believe it was not lawfully made."

    I've heard that fair use copies are lawful copies and therefore they can be used, which makes perfect sense to me. Usually people seem to interpret the restriction as applying primarily to "bootleg" copies. But I'm wondering when (or if) we have to go out of our way to determine whether a copy was not otherwise lawfully made.

    Take the common example of a college art history department that has amassed a collection of images over several years for their faculty's instructional use. Some of these images may be copystand photography or may have been digitally scanned from art books owned by the department. Some images might be commercially purchased slides or digitized versions of such slides. Still others could be photographs that faculty created while pursuing their own research and then later donated to the department (with or without explicit transfer of rights). Say the department didn't maintain clear records of provenance for every image, and since the collection was built piecemeal over several decades, it would be impossible to track that information down at this point.

    Do you feel legally obliged to assess whether a given image is "lawful" -- whether under fair use or some other criteria -- before you can use it in the ways described in Sec. 110? Or would you say that if you don't have any particular compelling reason to believe the images were not lawfully made, then the exemptions apply?

    In other words, do you feel the restriction against unlawful copies is meant only for obvious cases, like bootleg DVDs purchased on a streetcorner, or do you feel it also applies to a situation like the art history image collection that I've described? If the art dept. scanned all or most of the images in just one of the art survey books they own, many people might say that exceeds fair use; so would the images scanned from this book be "lawful" copies as far as Sec. 110 goes or not? And if you didn't know up front that several images came from a single source, would you feel obliged to ask?

    Any feedback/opinions are greatly appreciated...
  • RDavis - I'm looking into this. I'll be back by the end of the week with a response.

  • My general take on this is if the person responsible is reasonably sure that the work is legal thenyou should be good. In the specific example you cite, If the images are pretty typical copystand photos then I would think that it would be fine. As the librarian in a solo situation like mine, I often have to make some judgement calls. If something looks suspicious then I opt for not doing it.

    Any other thoughts?

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