Copyright and Music Education

Copyright and Music Education : 

Copyright and Music Education A guide for the 21st Century Music Educator

Areas of Music Education that involve Copyright : 

Areas of Music Education that involve Copyright Performing Music Copying/Buying Music Recording Concerts Arranging Music 2

Copyright in History : 

Copyright in History Originated in Great Britain under the rule of Queen Anne in 1709. First instance of Copyright Law in the United States occurred in 1790. Musical compositions were first covered in 1831. Public performance was first covered in 1897. 3

Intellectual Property : 

Intellectual Property As described by Dictionary.com, Intellectual Property is “property that results from original creative thought as patents, copyright material, and trademarks.“ What does this mean for teachers? If you didn’t create it, it is somebody else’s property and you must get permission to use it!! 4

Copyright Act of 1976 : 

Copyright Act of 1976 Defines protected works as ,” original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Extends the time period that a work is protected to 50 years after the death of the author or composer. Introduces Fair Use What does this mean for music educators? Anything you are using that is not your original creation IS covered under copyright. You MUST research whether or not things are still under copyright before you use them. If they are, you must have written permission to use it! 5

Family Entertainment and Copyright Act of 2005 : 

Family Entertainment and Copyright Act of 2005 ART Act (Artist’s Rights and Theft Protection Act) This piece of legislation increases the penalties of reproducing a protected work in a movie-showing venue. Family Home Movie Act Makes the use of technology to filter out offensive material legal. How it applies to teachers Allows you to use a device to filter out content to make educational movies viewable to a small number of people. Does NOT allow you to make a “filtered” copy of the DVD, only to filter it as it is being played. 6

Fair Use : 

Fair Use Allows teacher limited use of copyrighted materials without obtaining permission. Essentially the only defense that might hold up in court for copyright infringement. While areas can be considered to determine Fair use, the actual rules are quite ambiguous. A court’s ruling will depend on the specific case. There are no set standard, but you can guess pretty well based on previous court rulings. Four areas to consider whether or not your actions fall under Fair Use. Nature of the work The purpose of the work in question The amount of the copyrighted material used Economic Effect 7

Digital Millennium Copyright Act of 1998 : 

Digital Millennium Copyright Act of 1998 This law makes it illegal not only to distribute digital media, but to copy it in the first place. This copyright legislation also makes it a crime to crack copyright – protection devices. How does this apply? You can never copy copyrighted MP3 without permission to give to your students. This includes copying an archive copy of a concert. If you do not have permission to record a concert, you CANNOT distribute it! NEVER try to crack a protection device to make illegal copies! 8

Fair Use – What is the nature of the work? : 

Fair Use – What is the nature of the work? Does the copyrighted material in question contain mostly fact, or mostly fiction? If it contains facts, it is probably considered public domain and you would not need permission. If you are presenting facts in an educational, non-profit setting, it would be considered fair use. Even though the facts themselves are not protected, the way in which facts are presented is protected. If the work is mostly fiction, it falls under intellectual property and the author has the protection of copyright. 9

Fair Use – What is the Purpose of the Work? : 

Fair Use – What is the Purpose of the Work? Is the work transformative or derivative? Transformative works help to educate or enrich the knowledge of the general public. Derivative works seek only to further personal gains of the author Teachers are generally covered under transformative, but this fully depends on the other three aspects of Fair Use. 10

Fair Use – How much was copied? : 

Fair Use – How much was copied? This aspect observes how much copied material from the original work appears in the work in question. Generally, the lesser amount of copyrighted material used, the more likely it will be considered Fair Use. 11

Fair Use – Economic Effects : 

Fair Use – Economic Effects This final aspect assesses how much this will inhibit the copyright holder from making money because of the alleged infringement. If the work in question doesn’t affect the income from or marketability of the copyrighted work, it is more likely to be considered Fair Use – but not necessarily. 12

Fair Use Summarized : 

Fair Use Summarized 13

Recording Performances : 

Recording Performances In order for you to legally record a performance, you must obtain permission. If you are simply making an audio recording, you must obtain the mechanical licenses for EACH SONG on the recording. If you are recording a DVD or video recording, you must obtain both a Mechanical license and Synchronization license for EACH SONG on the recording. You may however make ONE copy of any performance without obtaining licenses in order to keep in an archive should you want to do anything with it later. 14

Obtaining Licenses : 

Obtaining Licenses Mechanical Licenses In making an audio recording, the easiest way to obtain licenses for all of the songs being recorded is through the Harry Fox Agency (http://www.harryfox.com/index.jsp) Synchronization Licenses Very challenging to obtain. Must be obtained through the publishers of each piece on the recording. You must contact each individual publisher, and save the written proof for your records. 15

Is This Legal? : 

Is This Legal? Mr. Turner has been working on a piece with his Junior High band for their upcoming concert in two days. Mr. Turner bought parts for every person in the band, but three of his students reluctantly approach him the day before the concert claiming that they lost their parts. While there are other people on each of these parts, Mr. Turner does not have any more originals for these students to use. So, he orders three new parts, and makes emergency copies for his students to use for the concert. Is this legal? If so, what law allows it? If not, what can he do to solve this problem legally? FAIR USE 16

Is This Legal? : 

Is This Legal? Miss Smith is trying to spark interest in her high school chorus. In order to do so, she wants to incorporate the latest pop song into her concert repertoire. So Miss Smith obtains an MP3 file of the song and transcribes and arranges it in four parts for her chorus, and distributes it to her chorus at the next rehearsal. Is this legal, infringement or Fair Use? If it’s legal, which law(s) support this action. If not, what steps must Miss Turner take in order to legally do this? FAIR USE 17

Is This Legal? : 

Is This Legal? Mr. Maul believes that every student should be able to have a copy of their performances. So, he records their latest orchestra concert and gives each student a copy to keep and show family and friends. After all, the students were the performers! Is this legal, infringement, or Fair Use. If it is legal, what laws condone this action? If not, why and how could he legally carry this out? FAIR USE 18

Basic Copyright Reminders : 

Basic Copyright Reminders When in doubt, GET PERMISSION! Always check music, pictures for programs, etc. for copyright. If it is copyrighted, you must have the permission of the creator to use it! Fair Use rules are ambiguous. If you are not certain that your circumstance would fall under Fair Use, get the copyright holder’s permission. STAY INFORMED! Copyright laws constantly change. Laws change frequently, especially with more advanced technology. Ignorance of copyright law will never hold up as a defense in a court of law! 19

Bibliography : 

Bibliography MENC’s Copyright Center - http://www.menc.org/resources/view/copyright-center US Copyright Office - http://www.copyright.gov/ Unpublished Presentation at ECBDNA/PA-ICB (3-12-2010) Copyright and the Ensemble Director – Dr. Joseph Pisano http://mustech.net/2010/03/13/copyright-for-ensemble-directors-materials Slide Background courtesy of : http://www.flickr.com/photos/horiavarlan/4273272605/ (Creative Commons) Graphics Green Check Mark (slides 16,17 and 18) – Public domain Red X (slides 16,17 and 18) – Public domain Slide 13 YouTube Video – Legal use (see http://mustech.net/2009/04/09/embedding-youtube-clips-on-a-blog-or) 20

Useful Resources : 

Useful Resources The Teacher’s Guide to Music, Media, and Copyright Law James Frankel, Hal Leonard Books, New York. 2008 Copyright’s Highway: From Gutenberg to the Celestial Jukebox Paul Goldstein, Standard University Press, Stanford , CA. 2003 Copyright: Examples & Explanations Stephen M. McJohn, Aspen Publishers, New York. 2005 Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions Kenneth D. Crews, American Library Association, Chicago, IL. 2006 Digital Copyright Jessica Littman, Prometheus Books, Amherst, NY. 2001 Fair Use, Free Use, and Use by Permissions: How to Handle Copyrights in All Media Lee Wilson, Allworth Press, New York. 2005 Steal the Music: How Intellectual Property Law Affects Musical Creativity Joanna Demers, University of Georgia Press, Athens, GA. 2006 The Future of Music: Manifesto for the Digital Music Revolution David Kusek and Gerd Leonhard, Berkeley Press, Boston, MA. 2005 The Public Domain: How to Find and Use Public Domain Writings, Music, Art and More Stephen Fishman, Nolo Publication, Berkley, CA. 200 21 List Courtesy: http://mustech.net/wp-content/uploads/2010/03/ECBDNA_Handout_2010.pdf - Dr. Joseph M. Pisano. Used With Permission.