Q: Is using portions of copyrighted songs (10% or less than 30 seconds) acceptable in the context of a student created book trailer? A teacher is hoping to post the completed projects online, so I want to make sure that we stay within the bounds of fair use. I know that there are plenty of options for royalty free music, but I also know that students will want to use music that they know and connect with.

A: You were on the right track when you started looking at the multimedia guidelines, from which those numerical limits derive, but you need to explore a little further. The book trailer is more than likely a “multimedia product,” meaning it incorporates both sound and images. When such a product is made in school, the multimedia guidelines can provide guidance on what can be considered fair use. (That’s not to say that use beyond the multimedia guidelines is not fair, just that there is an agreement through a Congressionally sponsored process that the limits outlined in the multimedia guidelines are considered fair without having to go through the four factor fair use balancing test. You can see the guidelines, as approved, here: https://copyright.lib.utexas.edu/ccmcguid.html.)

As you look over the multimedia guidelines, you will notice that section 1.3 limits the application of the guidelines to “educational multimedia projects which are created by educators or students as part of a systematic learning activity by nonprofit educational institutions.” So before you even begin looking at the quantitative limits within the guidelines, you need to assess whether this use fits that definition. Certainly the use within the class to create the book trailer meets the educational requirement expressed in the guidelines, but use within the classroom is not necessarily the same as publication on the open web. In fact, the guidelines limit where projects created within the guidelines can be put online. Section 3.1 limits student use of projects to “within the course for which they were created” (implying that only the teachers and students in the class will see the resulting project). The section also approves “later” personal use such as portfolios. Even if use on the web in some sort of portfolio were included in that description, it seems unlikely, based on the “later,” that concurrent use for class posting on the open web would be included.

Had the teacher created the trailers, there is some limited online use permitted in section 3.2.3, but that use is predicated on time limitations AND copy protection that schools typically don’t have. Certainly open sites such as Teacher Tube and YouTube don’t have those copy protections.

But most important, section 5.3 requires permission to use copyrighted portions (such as the musical excerpts referenced in your question) when distribution exceeds what is allowed under the guidelines. As discussed above, the broader distribution contemplated by your teacher do not comport with the two potential uses for student work allowed under the guidelines (within the class and for personal portfolios), so the guidelines would suggest that the student get permission for use of the copyrighted songs (and any other copyrighted material used in the presentation) prior to displaying the trailer on a web site with access beyond the original classroom.

But Don’t Forget!

Notwithstanding the analysis above, you can always jettison the multimedia guidelines and go with a standard fair use assessment. The four factors found in section 107 can be applied to each piece of copyrighted media used in the trailer, individually, and the assessment used to determine if the use of each media excerpt is fair. The fair use assessment is a subjective test, as opposed to the multimedia guidelines, so your decision that the use is fair may or may not be upheld by a court of law. Your compliance with the guidelines, while not law, provides your use with a justification that a court could reasonably apply to determine that your use, even if not completely fair, was de minimis enough to qualify as innocent infringement—a very minimal fine.

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 lesson or the use to which it is put.