Q: One of our administrators heads a school historical society, and they recently had a big evening event. As part of this event he made a presentation and used popular contemporary music in the background. He used up to 50% of some songs, but most were less than that. The presentation was posted on the school website open to the public, and the school webmaster took it down saying that the use of music was a violation of copyright. 

When they asked for my opinion, I said that this was a school event, no fundraising of any kind was involved, teachers were encouraged to show the video in the classroom as a community building tool and relate it to our goals regarding character, integrity, etc. In my opinion this all weighs in favor of fair use. I suggested that the administrator could shorten the clips for songs that use over 20% and also put a credit slide at the end of the presentation to make the use comply more closely with fair use. Another alternative would be to record our school band playing popular/contemporary music that they have purchased the rights for and to use that recording as the background music.

A:  You may be mixing some of the educational guidelines with statutory fair use. While both are valid, trying to mix them up will get an incomplete analysis under either standard. Let’s look at the analysis above. You call the product a “presentation” so I will assume you are referring to a multimedia project as defined in the Fair Use Guidelines for Educational Multimedia: “Educational multimedia projects created under these guidelines incorporate students' or educators' original material, such as course notes or commentary, together with various copyrighted media formats including but not limited to, motion media, music, text material, graphics, illustrations, photographs, and digital software which are combined into an integrated presentation.” So I will begin the analysis using the Fair Use Guidelines for Educational Multimedia (“Multimedia Guidelines”).

The Multimedia Guidelines apply to “the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects which are created by educators . . . as part of a systematic learning activity.” Works may be used “only for educational purposes in systematic learning activities including use in connection with non-commercial curriculum-based learning and teaching activities by educators to students enrolled in courses.” The section of the Multimedia Guidelines on uses of materials makes references to “Educator Use for Curriculum-Based Instruction,” “Educator Use for Peer Conferences,” and “Educator Use for Professional Portfolio.” The use for the extracurricular event might be “curriculum-based instruction” by “educators to students enrolled in courses,” though we aren’t certain about that. But the use by posting the presentation on an open website is not likely to meet the curriculum-based instruction requirement, and it likely doesn’t meet the Multimedia Guidelines’ requirement that works posted on a password-enabled network restricted from copying. If the school’s password-enabled webpage is used to make the presentation available only to enrolled students for no more than fifteen days following assignment, the use may be acceptable, but you said the web page was open. Therefore, the administrator must have permission for every piece of copyrighted material used in the presentation.

Since it appears that the Multimedia Guidelines will not help us out, let’s try analysis under the Section 107 Fair Use tests. You will need to repeat this test for each piece of copyrighted media incorporated in the presentation. Factor one includes the purpose and character of the use, including whether the use is commercial or nonprofit educational purposes. The use for the school historical society event most likely satisfies this factor, but posting it on an open webpage may not. Factor two implicates the creativity of the works being used. Certainly music is creative, so its use is highly protected. There are some mandatory licenses that are required, but this use does not meet any of them. So this factor will likely be against the use in the event and on the web page. Factor three involves how much of the work is being used. Unfortunately for this use, some courts have found that even as little as a few notes of a song exceed fair use. The use of close to 50% of a copyrighted song in a work that is not commenting on the music or doing a parody of the music is likely not fair for this factor. The final factor, the effect of the use upon the potential market for or value of the copyrighted work can take into account the availability of licensing of works. Since licensing is readily available for musical works, and some of the works might be long enough to substitute for a copy of the original, this factor could go against the use. At best, two factors are against the use of the music; at worst, all four factors could be against a given use. This needs a more thorough look at each piece of copyrighted material in the presentation.

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