Q: I have a YouTube Channel where I read picture books aloud in their entirety. I do not request permission from the author or publisher. I have proposed to my district library director that we make available my YouTube videos reading the titles as a way to promote the books with readers. The director is resisting, saying that these videos are infringements. We need you to give us some analysis of the situation, please.
A: Before doing any analysis of this practice, I need to establish some assumptions that aren’t stated in your question. I am assuming that the picture books you are reading and recording are 1) published, 2) protected by a registered copyright, and 3) recorded on video using both the words and the pictures. If any of those assumptions do not apply, the analysis that follows could be incorrect.
Because your YouTube videos include sounds that accompany a video, your recordings are not a “phonorecord.” 17 U.S.C. § 101.
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
But your recording of the words and pictures of a picture book can be considered a “copy” as defined in the law:
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
17 U.S.C. § 101. Making a video recording of you reading a book is also considered a “derivative work,” which is defined in the law as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
17 U.S.C. § 101.
One of the exclusive rights of a copyright owner is “to reproduce the copyrighted work in copies or phonocopies.” Nevertheless, the statute provides some limitations on the exclusive rights of copyright owners; the limitations are known as “fair use.” 17 U.S.C. § 107. In this situation, we can apply the four fair use factors as outlined in the statute to see whether you have a fair use defense to the infringement of copying the work owned by the copyright owner. The statute indicates that uses such as criticism, commentary, news reporting, teaching (including copies for classroom use), scholarship or research are not an infringement, but to decide whether those purposes are met, one must analyze all four factors.
Factor one: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. You didn’t say if you are charging anyone to view the YouTube videos, but since YouTube is a commercial service open to anyone, it is highly likely that the videos are not limited to just classroom use. So this factor is not strongly in your favor. Additionally, courts have added a consideration whether the resulting work is “transformative” when assessing this factor. “Transformativeness” means some sort of value added by the use of the copyrighted work. Simply reproducing the work in a rote manner (by just reading the words and showing the pictures) would not meet the requirement to be transformative, weakening the factor one assignment in your favor.
Factor two: Factor two addresses “the nature of the copyrighted work.” The “nature” is whether the work is creative or factual. Factual works are not protected, while creative works are highly protected. Undoubtedly, a picture book is a creative work in both the literary and the artistic sense, therefore this factor would weigh strongly against your use of the copyrighted work.
Factor three: This factor concerns how much of the work you are using under a claim of fair use. The actual text of the factor reads “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In the case of your use, you are using the entire work, both text and images. While using an entire work does not always swing this factor against a fair use (such as use of a work for parody), in this case, the factor would not have any of the special circumstances that would allow use of an entire work. This factor would weigh strongly against a fair use.
Factor four: The final factor considers the “effect of the use upon the potential market for or value of the copyrighted work.” This is a wide ranging factor that includes uses that usurp obvious uses that a copyright owner might be expected to make of the work. In this case, you have usurped the copyright owner’s reasonably expected right to make a derivative work in the form of a video or audio book of the work. Additionally, your video could take the place of the actual work, thereby depriving the copyright owner of a sale. This factor would also go strongly against you.