Q: I always understood that current songs on video yearbooks are not fair use because yearbooks are not for instructional purposes but for entertainment. A teacher brought in FCC guidelines that seem to point to the possibility that distributing a CD of current songs is permissible. The video yearbooks are distributed to those who purchased the hard copies of the yearbooks, so technically they are free distributions. Is putting the music on the video a violation of copyright or is it fair use?

A: Fair use? Go through a fair use assessment:

Factor one: Purpose and character of the use. The use is not educational (like studying civil war music in history class, or studying rhythm in music class), nor is there commentary or criticism. It is simply audio “decoration.” There is no transformative use; it is simply reproduced.

Factor two: The nature of the work. The work is undoubtedly creative, though it has been published.

Factor three: The amount and substantiality of the work used. The entire work is copied.

Factor four: The effect of the use on the market for or value of the work used. The work takes the place of a purchased copy. Why buy another copy of the work when you have a pristine digital copy on the yearbook CD?

This does not appear to be a fair use. And I disagree about the “free distribution” part. I will wager that if a student doesn’t buy a yearbook, that student doesn’t get a CD. So they are buying the CD as an accompaniment to the yearbook. Even if they were free distributions, the above fair use analysis would still apply. I also question the “FCC guidelines.” The FCC is the Federal Communications Commission, which controls broadcast communications and communications over radio frequencies in the US. Their guidelines don’t appear to have any application to copying recorded music and distributing it via CD.

BOOK CLUB MOVIES

Q: A high school teacher librarian wants to show a video (no charge) after-hours on the school campus. The video is tied to a book that she and her book club have been covering during their book club meetings. Where does this fall in terms of fair use, copyright, etc.? Will they need licensing to do this (which they don’t currently have)?

A: I will assume this film is protected by copyright, though there are a few films, mostly from the sixties and before that are not protected by copyright either through failure to properly register the rights to the film in the first place, failure to include proper notice of copyright on the work, or failure to renew the copyright for its second term of protection. None of those situations applies to films created after the 1970s or 1980s. Public performances of films are controlled by section 110(1) of the copyright act. Here is the text of that section:

§ 110 . Limitations on exclusive rights: exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

Section 106 is the section that reserves rights to the copyright owner. So if you look at the requirements identified in the statute, is the performance by instructors and pupils (without additional hangers on)? Is this in the course of face-to-face instruction? A closure activity seems to qualify for that requirement. Is the school a nonprofit institution? Public schools certainly are, but there are some for-profit schools. If you are in one of those, your use will not qualify on the 110(1) exemption. Where will the showing take place? You indicate that it will be on the “school campus” but will it be in an “instructional place”? And finally, is the performance being made from a legal copy of the work? Answering that question may be more difficult than it appears, especially now that there are multiple ways to acquire a work, some of which may preclude any public showing, which this most certainly would be. So the teacher will need to investigate the means of getting the copy, which must verify that there is no license or other terms or conditions that prevent use for a public performance.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district’s attorney.