Copyright Questions of the Month

COPYRIGHT POLICIES

Q: Our committee has been asked to draft a new copyright policy for our county. I am thinking overall copyright and digital copyright as well. Our county’s policy does not have anything about digital copyright in it at this time. On the listserv I shared my reservations about Vbrick and transferring a VHS or DVD to digital. I know this needs to be addressed with copyright as well. Any information will be helpful.

A: A copyright policy should not detail copyright practice. It should either just state the law or say that employees are expected to follow the law. The law changes several times a year, either through the Congress or court decisions, similar to law on Family and Medical Leave or civil rights. Unless you want to have to change your policy every time a federal court makes a ruling on fair use, I would recommend the latter option on policies. There is a model copyright policy in the appendix of my copyright book, Copyright for Schools (5th ed.). The policy has remained consistent over multiple editions of the book because it tells educators that they must inform themselves on current copyright law and follow that law. That’s all one can ask of policymakers.

RULES FOR MUSIC VS. RULES FOR OTHER MEDIA

Q: This summer, our music teacher was part of an Aaron Copeland study program in New York City. She’s now preparing an Aaron Copeland concert with her MS & HS choral & band students. Earlier this morning, the HS choir was in the library lab beginning PowerPoint presentations that will be projected during the concert.

The music teacher feels that image copyright should not be an issue with the PowerPoints since they were created as part of a class. I believe that since the PowerPoint slides will be used in a public performance, copyright is an issue.

This is a situation where music copyright and image copyright are not equal. I know when our music department purchases scores for the choir or band, they get live public performance rights for the music, but not duplication rights (to tape or transmit) the music in any form other than live music.

To be on the safe side, should I request that the music students use images from the Creative Commons in their PowerPoint presentations for the concert?

A: The rules for school performances of music are outlined in the “Guidelines for Educational Uses of Music,” part of the Kastenmeier Report in 1976. Under the guidelines, students may perform works in public (like at a band or choir concert) without having public performance rights if only students perform the music (live), no admission is charged, or any admission charged goes to the school or school organization, and the copyright owner of the music does not object to the use of the music seven days in advance. Even recording the concert falls under the guidelines: The band or choir may make one recording of the performance, but that recording may only be used back in the band hall or choir room to critique the performance. So the musical portion of the concert should not be of concern.

The PowerPoint presentations to accompany the music can be evaluated under either the Multimedia Guidelines or standard fair use. Obviously, the Multimedia Guidelines are much easier to interpret and apply, but if the Multimedia Guidelines don’t provide the use needed, you can always do a standard fair use analysis of the use. While the Multimedia Guidelines address many facets of multimedia use, I will focus only on images since that appears to be the teacher’s main concern.

The Multimedia Guidelines only apply to educational use of copyright-protected materials in PowerPoint (and other multimedia authoring system) presentations. The Guidelines allow a student-created multimedia program (including the copyright-protected images of others) to be used in the class for which the multimedia program was created. Since the public concert is not the class, we need to investigate another option to clear the use of any copyright-protected images in the concert.

The easiest option is to choose material that has permission for such use. Public domain images (meaning the copyright in the image has expired for some reason) are a simple way to avoid a public display issue. Many Creative Commons images are also cleared for many types of use, depending on the rights granted. Remember that if you have permission (i.e., an appropriate license) you may use works in ways not otherwise permitted.

Assuming you wish to use an image that is not public domain or licensed, it is time to do a regular four-factor fair use assessment of the image.

• Factor One: The image is being used for nonprofit educational purposes, which gets a minimal “win” on this factor. You can strengthen the factor if there is some commentary or analysis of the image. Unless you plan to make a collage or other artistic rendering of the image, you are unlikely to reach the “transformative” use that makes this factor strongly in your favor.
• Factor Two: Is the image factual or creative? This factor can get tricky with images, since most images are both fact-based and creative. Certainly, if the image is of art, the work is creative and this factor would weigh against the use. The more the image is like a candid photo, the more “factual” the work would be and therefore weigh in favor of the use.
• Factor Three: How much of the image are you using? Most likely, the students will be using a significant part of the image, making the use less likely to be fair.
• Factor Four: Does your use of the image harm the market for or value of the image? A student use in a nonprofit setting would arguably not harm the work, but if the work is available for licensing, that analysis might change. Some courts have found that when a work is available for license, fair use of that image is seriously reduced.

This article is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this article is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this lesson or the use to which it is put.