Caveat # 1: I am not a lawyer and do not pretend to be one.
Today, I read an article posted on Ars Technica written by Timothy Lee detailing a recent “fair use” Copyright decision by Judge Sidney Stein of the U.S. District Court - Southern District of New York.
From the article:
Judge Stein’s task wasn’t to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film’s use of “Imagine” is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon’s anti-religious message. The excerpting of copyrighted works for purpose of “comment and criticism” is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.
The decision quotes extensively from Bill Graham Archives v. Dorling Kindersley, a 2006 decision that allowed the reprinting of reduced-size versions of several historical posters used in a coffee-table book about the Grateful Dead. In that case, as in this one, the alleged infringers had used the works in a commercial product, but the US Court of Appeals for the Second Circuit found that “courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest.” Whatever the merits of its argument, Expelled is clearly commentary on an issue of public concern, and the use of “Imagine” was central to its argument. Those facts weighed heavily in favor of a finding of fair use.
Stein and company were defended by lawyers from Stanford’s Fair Use Project. In a blog post announcing their decision to take the case, executive director Anthony Falzone wrote that “The right to quote from copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine,” and argued that Ono’s actions threaten free speech.
This decision and the 2006 decision referenced above cause me to ask a few questions regarding the implications for music education:
In the 2006 decision, the use of reduced sized Grateful Dead posters was upheld as “fair use” within a commercial product because “courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest.”
In the Sidney Stein decision, the use of an excerpt from John Lennon’s Imagine used in a commercial film for the purpose of criticizing and commenting on issues that “benefit the broader public interest.”
So, what are the implications of using copyrighted samples or excerpts of commercial music or videos as part of our students’ educational pursuits? Is careful musical and educational use of commercial music and video in school projects of “benefit to the broader public interest?” If our students are utilizing these materials (including YouTube videos) for the purpose of artistic, musical “comment and criticism,” would that not also be considered “fair use” in light of these decisions?
What is particularly interesting to me is that both of the approved uses described above - using a copyrighted image in reduced resolution and using an excerpt of a copyrighted and performance-righted musical recording - were found to be “fair use” in two commerical settings. Also, both uses of copyrighted material seem to have been interpreted b the Judges as a “transformative” use (see Wikipedia entry on Fair Use). It would seem to me (again I am NO lawyer) that similar uses and creation of original multimedia using music and popular commercial and non-commercial video for “comment and criticism” of “benefit to the broader public interest” where the work has been “transformed” and not wholly-duplicated within an non-profit educational setting of a school would now be permissible as documented by the above case law.
Let’s take a look at the “fair use” section of the Copyright Act of 1976, 17 U.S.C. § 107:
Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- and the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Since the above uses were found to be “fair use” within commercial settings, factor #1 in the Copyright Act of 1976 would seem to provide students and teachers working in an educational context even more protection under “fair use.” I find the Sidney Stein ruling of particular importance to music educators because it provides case law that extends the “fair use” of images to copyrighted and performance-righted musical recordings.
In light of the cases described here, I feel more comfortable letting my students use copyrighted images and musical excerpts in the creative and educational work they do in my K-College music and music ed courses, with the following caveats:
- The use of the works is in part, and not in whole (e.g., reduced resolution or size)
- The use of the works for the purpose of “criticism and commentary”
- The use and creation of the works results in a “value that benefits the public interest”
- The use of the works is “transformative” such as in a parody or for “criticism and commentary”
- The use of the works do not devalue or negatively impact the market of the original copyrighted works
And, I might even be inclined to allow them to put together a compilation CD or DVD and sell them as a fundraiser….
What do you think?
Over the past year, senior music education majors have been taking General Music Methods I and II with Dr. Gena Greher and me at UMass Lowell. Since October of 2008 these students have spent Wednesday mornings teaching 3rd, 6th and 7th grade classes at the Bartlett Community Partnership School here in Lowell, MA. 
Last week one group of our students invited the 7th grade class from the Bartlett School to spend the day at UMass Lowell recording a song the class arranged in the UMass Lowell recording studio.
The rehearsing and recording was facilitated by UML graduate sound recording technology major Tim Brault and UML music education majors Jo Price, Lindsey Sherman and Zach Cooper.
