Copyright: Performance Exemptions

When can you perform music without worrying about copyright permission? Here are some teaching-related exemptions from what might otherwise be considered copyright infringement:

(1) Face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction. Playing recordings in class also falls under this category. However, this exemption does not apply to

Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program.
Performances given for the recreation or entertainment of any part of an audience (regardless of cultural value or intellectual appeal).
Performances in profit-making institutions (for-profit dance or music studios).
Performances in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to the members of a particular class.

Permission from the copyright owner is required for the above 4 instances.

(2) Distance education activities where a musical work is performed or displayed in a transmission in an amount comparable to that typically displayed in a live classroom session. The law places the onus of copyright policy on the transmitting body or institute. To comply with this exemption, the performance must be

Made by, at the direction of, or under the actual supervision of an instructor
An integral part of a class session offered as a regular part of the normal teaching of a public school or accredited nonprofit educational institution
Essential to the teaching content of the transmission and be made solely for and (to the extent technically feasible) limited to reception by students officially enrolled in the course

For help in complying with this exemption, use the checklist in Appendix F of “U.S. Copyright Law: A Guide for Music Educators.”

(3) Performances at places of worship or at a religious assembly of nondramatic literary or musical works or of dramatico-musical works of a religious nature, in the course of services.

(4) Performances at a school concert—as long as no money changes hands—of nondramatic literary or musical works. No one can gain any direct or indirect commercial advantage; no fee or compensation can be paid to performers, promoters, or organizers; and no admission charge can be levied. You may ask an admission fee, but all proceeds must be used only for educational or charitable purposes. However, a copyright owner may prohibit a performance of his or her work by serving notice at least seven days before a performance (although teachers are not obligated to notify a copyright owner of an upcoming school concert).

A student concert at a shopping mall is NOT exempt—the mall gains an indirect commercial advantage.

NOTE: Copyright law distinguishes between dramatic and nondramatic works. Performances of musical plays (dramatic works)—whether in their entirety, condensed, or just scenes—do not fall within these exemptions—even if there is no commercial advantage to anyone.

NAfME member Jay Althouse points out school performances that are not exempt from copyright infringement:

Concerts by paid performers, such as rock, jazz, or country bands
School dances with live bands or deejays
Orchestras in residence
Concerts by touring performing groups
School assemblies featuring outside, paid performers
Background music in school buildings

Last Word: Any performance that is not exempt requires permission from the copyright holder.
Creativity in the Classroom—a program fostering respect for intellectual property and an awareness in students of their creative work.

Posting Your Musical Performance on SchoolTube: A How-To Copyright Guide

Jay Althouse is a music educator who served as a rights and licenses administrator for a major educational music publisher, as well as serving a term on the executive board of the Music Publishers Association of America. He composes choral music and has written several books in addition to his book on copyright.