"Fair Use: Don't nullify the authors ability to recoup the investment to create the work."

~Mark Menethil
Vernon Law Group, PLLC
Dallas, TX

Legal Issues Surrounding Gaming in Libraries

Public Performance :: Circulation :: Permission Slips :: Photo/Media Release

Before using a game in a program, take a look at the End User License Agreement (EULA) or Terms of Service (TOS).  Many games specify "personal use" of the product. Always write to the copyright holder and request permission to use the game as a public performance. Some companies, like Electronic Arts (EA), have a form you can complete and email to request permission. Simply email the rights holder, like Julia Bowersox did for the Battle of the Gaming Bands Rock Band Tournament at the Nanuet & Pearl River Libraries.

Games & Public Performance

In the Case of ALLEN v. ACADEMIC GAMES LEAGUE OF AMERICA 89 F.3d 614 (9th Cir.1996), the court ruled that playing a game in public is NOT a public performance. However, the EULA/TOS may supercede this decision, and state that public performance is not allowed.

1. Choose a different game. Nintendo of America has been supportive of games published by Nintendo being played in libraries. They exhibited at the ALA Annual conference in 2008, and have sent free consoles to libraries as well as Nintendo promotional items, like Wii points and demo games. Red Octane (Guitar Hero) encourages public performance. You may even charge an admission fee to cover the costs of putting on a tournament. They will also send freebies for prizes such as t-shirts, stickers, pens, pins, temporary tattoos, iron-ons, keychains, posters and/or buttons.
   
   
2. Focus on programs using handheld devices, where each user has a purchased or legally shared copy of the game on an individual device. Provide a forum to play together, not a public performance.
   
   
3. Write to the publisher or rights holder and state that your library is opting out of the "public performance" limitation of the EULA.
   

Games and Circulation

Before adding a game to circulation, read the End User License Agreement (EULA) for the games.  Some publishers specify the number of installs for the disc, and put digital rights management on the disc to prevent installs after the specified number. For example, Spore (EA, 2008) can only be be installed three times.

Libraries provide patrons with the materials and information, but it has never been their role to ensure that the person using the copier isn't photocopying a whole book or magazine articles to distribute for free; or to make sure patrons are not burning library CDs to their computer hard drives.

Permission Slips

Using permission slips in gaming programs for youth has many benefits. Not only does it alert parents and caregivers to where their children are, it can provide an opportunity for parents and youth to talk about gaming.

A permission slip is a document used to alert participants about the ratings of the videogames they will be playing. Reidland High School (KY) used a permission slip for their student run program, because they wanted to incorporate M-rated games.

A permission slip can also serve to alert library staff about patron medical issues (it's good to be aware if a Dance Dance Revolution player has asthma or epilepsy), double as a media release form, or even incorporate a pre-survey about the gaming experience.

A waiver is a document to used to alert patrons they play or participate that their own risk. Colby College used liability waivers for students who opted to play Flashlight Tag in the dark stack.

Photo Permissions

Documenting a program is one way to informally evaluate it; a photo of 25 people at a gaming program is a head count.

Photos and video can also be used as promotional tools, like the AADL.TV site for the Ann Arbor District Library (MI), and the Anime Con FlickrPhoto Stream for the the Public Library of Charlotte & Mecklenberg County (NC).

Not everyone wants to have their picture taken, and being sensitive to patron preferences, even when your program is open to the general public or taking place on a public property, is always recommended.

Policy on photographing/videotaping patrons varies widely from library to library. When in doubt, allow patrons to opt in by submitting their own photos or videos of themselves at the event, like Hennepin County Library (MN) does on their website.

Alternatively, develop a media release form, stating how the image is to be used.

If you DO take photos, and have permission to post them, please add them to the Gaming in Libraries Flickr Pool! Tag your photos "gaminginlibraries" so they can be easily located.

Resources

ALLEN v. ACADEMIC GAMES LEAGUE OF AMERICA 89 F.3d 614 (9th Cir.1996): http://bulk.resource.org/courts.gov/c/F3/89/89.F3d.614.html. January 5, 2009.

Copyright Law of the United States. www.copyright.gov/title17. January 5, 2009.

Carson, Bryan. "Laws for Using Photos Taken at your Library." Information Today, September/October 2008. www.infotoday.com/mls/sep08/Carson.shtml. February 18, 2009.

Menethil, Mark. Law of the Game. http://lawofthegame.blogspot.com. January 5, 2009.

Menethil, Mark. “What Every Librarian Needs to Know about Videogames and the Law.” ALA Techsource Games Learning  & Libraries Symposium. November 2008. http://gaming.techsource.ala.org/index.php/What_Every_Librarian_Needs_to_
Know_about_Videogames_and_the_Law

Russell, Carrie.  "Carrie on Copyright: Rules of the Game." School Library Journal, June 2008. www.schoollibraryjournal.com/article/CA6565670.html. January 5, 2009.