Copyright Questions of the Month. Music during Passing Periods

Q: During six-minute passing periods, the principal wants to be able to play music for the students over the PA system. The audio system allows for loading digital files, CDs, or simply plugging in an auxiliary cord from a personal device and playing music out of a personal library. This of course makes the playing of any music of anyone’s choice incredibly easy. (The local reasoning is, it must be legal if ‘they’ made it so easy…). My understanding is this is not educational or face-to-face teaching and is in fact a violation of copyright of the songs they would play.

A: Your analysis of the situation is essentially correct. The performances of music such as you describe don’t fit within any of the generally recognized educational exemptions, and are even submarginal examples of fair use. Section 110(1) identifies five factors that can make an audiovisual performance exempt:

1. The performance is made in a nonprofit educational institution;
2. The performance is by and for students and teachers in a class;
3. The performance is from a legally acquired copy of the work;
4. The performance is made in a classroom or other instructional place; and
5. The performance is a material part of direct instruction.

The example given in the question—playing recorded music over the PA system during passing periods—meets the requirement of only factors 1 and 3. The audience for the performances is not students in a class; it is students between classes. The hallway is not generally an instructional place (though it can be on special occasions, such as practicing measurements in elementary math or measuring wave forms in physics class, neither of which requires playing popular music over the PA). And most importantly, the performance is not part of any instruction.

Even a four factor fair use analysis shows that this type of use is not fair.

1. The purpose and character of the use–the work is for nonprofit purposes, but the educational part of this factor is less than clear. This factor is marginal.
2. The nature of the copyrighted work–the work is creative, therefore highly protected. This factor weighs against the use.
3. The amount and substantiality of the portion used in relation to the whole–in six minutes, you can probably play two entire songs, so you are using all of each of the works. This factor weighs against the use.
4. The effect of the use upon the potential market for or value of the work–this type of use could take the place of purchasing a copy of the work, or subscribing to a music service that licenses the work. This factor weighs against the use.

The fair use analysis does not favor this type of use.

All this being said, in October 2016 a representative of performance rights organization BMI** said that at this time they do not attempt to license these types of performances to K-12 schools, but they actively pursue similar licenses with colleges and universities. So this is a situation where, for BMI at least, you aren’t legal and can’t get legal.

** Performance rights organizations collect royalties from those who perform works of songwriters. The three major U.S. performance rights organizations are ASCAP, BMI, and SESAC.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column 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 column or the use to which it is put.