Fair use, which applies to all users, allows certain uses that would otherwise be illegal infringements of the copyright owner’s rights. For example, limited quotations of an excerpt from a work in a review or a news report are generally seen as constituting “fair use.” Fair use may also be found when the use is for purposes as criticism, comment, scholarship, research, or teaching. There is, however, no simple black-and-white test. The Fair Use provision of the law sets out four factors a court must consider in determining whether uses for these purposes may be judged “fair”:
- Purpose and character of the use (e.g., commercial or educational?)
- Nature of the work (epic poem, song, limerick, novel, opera?)
- Amount and substantiality of the portion used (how much is being copied and how important is the copied material to the work?)
- Effect on the potential market for or value of the work (is the monetary value of the work hurt by the unauthorized use?)
These four factors are listed in the law itself; in 1967 and again in 1975, legislators asked for help from the field (including the organizations that sponsor this document) to develop guidelines to help teachers and others analyze these factors. Those guidelines appear as Appendix B and Appendix C (on music and on books, respectively). Based on this legislative compromise, the intent of the law seems to be that music educators can do several things, without having secured permission of the copyright owner:
- Make a copy of a lost part in an emergency, if it is replaced with a purchased part in due course
- Make one copy per student of up to 10% of a musical work for class study as long as that 10% does not constitute a performable unit
- Make a single recording of a student performance for study and for the school’s archive
- Make a single recording of aural exercises or tests using copyrighted material
- Make up to three copies to replace a copy that is damaged, deteriorating, lost, stolen from a public library or archive (or if the existing format has become obsolete, and if, after reasonable effort by the library/archive, an unused replacement cannot be obtained at a fair price)
- Make one copy of a short verbal or a graphic work for teacher’s use in preparation for or during a class
The following, however, are expressly prohibited:
- Copying to avoid purchase
- Copying music for any kind of performance (but note the emergency exception above
- Copying without including a copyright notice
- Copying to create anthologies or compilations
- Reproducing materials designed to be consumable (such as workbooks, standardized tests, and answer sheets)
- Charging students beyond the actual cost involved in making copies as permitted above
Note that a work may be out of print does not mean that permission is given to copy and distribute that work. Music educators sometimes would like to procure a copy or copies of an out-of-print copyrighted work for specific purposes. For that reason, the music publishers’ trade associations have prepared a simple form for use in the procurement of out-of-print works. The form is reproduced as Appendix E.
Use by Educators: Recording
The copyright owner has the exclusive right to reproduce copyrighted works in phonorecords (meaning any form of audio-only recording), limited in the ways outlined previously. A common complication comes up when, in addition to recording music as part of the learning process, music educators may occasionally wish to record student performances and distribute copies of the recording within the community. Here, the teacher needs a license to do so, but the law somewhat simplifies the process for non-dramatic musical works. As long as the music has been distributed to the U.S. public under the authority of the copyright owner (who essentially gets the right to have the first try), any other person may obtain a compulsory license. That is, music teachers can pay a royalty, set by law, to the copyright owner. Through 12/31/03, that rate is set at 8.00 cents per selection or 1.55 cents per minute of playing time, whichever is greater.
In practice, a music teacher can get such a license by contacting The Harry Fox Agency, Inc., through the Web site at www.harryfox.com. There is a button on the site for “limited licensing of 2,500 copies or less” that makes licenses easy to obtain. The process is only for those who wish to make at least 500 copies; however, teachers who want to pay for fewer copies will have to contact the publisher of the music directly. Three primary sources for this information are:
- National Music Publishers’ Association, Inc. (NMPA) at www.nmpa.org
- Music Publishers’ Association of the United States (MPA) at www.mpa.org
- U.S. Copyright Office at www.copyright.gov
The first recording of a work and its distribution in recorded form, as well as any recording of a dramatico-musical work such as a musical comedy, requires the consent of the copyright owner.
Use by Educators: Preparing Derivative Works
Making arrangements of a piece of music is an exclusive right of the copyright owner, but under the legal compromises surrounding the law, some things are considered to be reasonable exceptions:
- Music teachers can edit or simplify purchased, printed copies, provided that the fundamental character of the work is not distorted or the lyrics, if any, are not altered or lyrics added if none exist.
- Music teachers who get a compulsory license for recording can make a musical arrangement of a work to the extent necessary for their ensemble (actually, “to conform it to the style or manner of interpretation of the performance involved”). This arrangement, however, cannot change the basic melody or fundamental character of the work. This privilege is not meant to extend to “serious” compositions. Anyone wishing to arrange a copyrighted work that falls outside the exceptions noted above must obtain permission from the copyright owner. To simplify this process, organizations that have participated in the preparation of this booklet have also prepared a standard form for request and grant of permission and worked out an expedited method for obtaining approval by e-mail. A copy of this form appears in Appendix D.
Use by Educators: Distribution
The only exception to the exclusive right of the copyright owner to distribute copies is that involved in the compulsory license relative to phonorecords as described above. Note that even here a license is required and must be paid for. The law just simplifies and details the times that permission must be granted and the maximum rates that must apply.
Use by Educators: Performance
Complete information concerning licensing of public performances of copyrighted non-dramatic musical works may be obtained from ASCAP, BMI and SESAC; together, these three organizations work for composers and publishers to handle the performance licenses for the vast majority of musical works. It should be emphasized that a performance of a dramatico-musical work—an opera, a ballet, a musical comedy, etc.—is customarily licensed by the copyright owner of the performing right or his agent. Often, this is the publisher of the music; sometimes, it is either Tams-Witmark Music Library, Inc. or Rodgers & Hammerstein Library.
And although performance is one of the copyright owner’s exclusive rights, the special needs of music educators, and others, are recognized in the fair-use limitations on these. The relevant portions of the law are reproduced in Appendix A, and music educators should take special notice of the very limited nature of these exemptions:
- The Face-to-Face Exemption: To qualify for this exemption, the performance must be initiated by instructors or pupils and must occur within the context of the “face-to-face teaching activities” of a nonprofit educational institution, in a classroom or similar place devoted to instruction (e.g., a library, studio or workshop). It should be noted that there is no specific restriction, in this case, on the type or amount of a copyrighted work that may be performed. This exemption is limited, and does not apply to:
- Performances by actors, singers, or instrumentalists brought in from outside the school to put on a program
- Performances, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience
- Performances in profit-making institutions such as 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 (Only performances “in a classroom or similar place devoted to instruction” fit this provision; performances at shopping malls and the like are certainly not covered)
- The Distance Education Exemption: The law does permit performance or display of a musical work by a transmission (distance education) in an amount comparable to that which is typically displayed in the course of a live classroom session. Because the law places the onus of developing and implementing a copyright policy on the transmitting body or institute (the school system), this really only applies to teachers who work in schools that have developed the technical and legal structures to deal with this issue. For example, storage and dissemination of the work must be tightly controlled, as must the use of audio-visual oar dramatico-musical works. Also, this exemption does not apply to works developed directly for distance learning or for recordings that were made illegally. A checklist to help institutions comply with the distance education exemption appears in Appendix F. At any rate, to come within the distance education exemption, the performance or display 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 an accredited nonprofit educational institution
- Essential to the teaching content of the transmission; and made solely for and, to the extent technologically feasible limited to reception by, students officially enrolled in the course for which the transmission is made
- Music for Worship Exemption: Performance of non-dramatic literary or musical works or of dramatico-musical works of a religious nature, in the course of services at places of worship or at a religious assembly, is permitted.
- School Concert Exemption: School ensembles, students, and teachers, can put on a performance of a non-dramatic literary or musical work at a school concert as long as no money changes hands. That is, nobody can gain any direct or indirect commercial advantage; no fee or compensation can be paid to the performers, promoters or organizers; and no admission charge can be levied. (There is even an exception to this: there can be an admission charge, but all of the proceeds must be used only for educational or charitable purposes.) The performance may not take place if the copyright owner objects in writing seven days before the performance.
Use by Educators: Display
Any music educator who has purchased or otherwise lawfully acquired a copy of a copyrighted work may display it to those present at the place where the copy is located. A teacher, as an agent of the school, can display a copy of music that he or she owns, or a school-owned copy. The legislative compromise surrounding this part of the law indicates that displaying the image of such a copy by an opaque projector would not be an infringement, whereas making an unauthorized copy, transparency, slide, or filmstrip to project would not be permissible.
The duration of copyright has changed several times as Congress refined compromises over the law. Currently, a teacher can generally presume that a work copyrighted less than 95 years ago is still covered by the law. Here are how the details work:
- Works created after January 1, 1978 will be protected for the life of the composer (author) plus 70 years.
- Copyrights in effect on that date, if renewed, will continue for 95 years from the date copyright was originally secured. Renewal became automatic for all works that first obtained US copyright in 1964 or later, so those works in their initial 28-year period of copyright on January 1, 1978 could have been or now can be renewed for an additional 67 years, while the copyright of works in their renewal term on that date were automatically extended for an additional 19 years, and, if still in copyright on October 28, 1998, again for an additional 20 years, for a total of 39.
The remedies provided by the law to a copyright owner mean that a music educator found making illegal copies, or otherwise infringing, could face some very unpleasant consequences:
- Statutory damages of from $750 to $30,000 in the simplest cases. If the court finds that the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement” the minimum damages may be reduced. Also, the penalty can be remitted for teachers in public or nonprofit schools who had reasonable grounds for believing that the “fair use” portions of the law applied. But be aware that ignorance of the law is no excuse—teachers who wish to use this provision need to understand “fair use” and make the most of the privileges it grants, but they must also abide by its very definite limitations.
- If a court decides that the act of infringement was willful, the damages can go up to $150,000 per copyright infringed.
- If a court finds willful infringement for commercial advantage and private financial gain is proved, the infringer can face criminal fines of up to $250,000 or five years’ imprisonment, or both.