Alex Ruthmann’s Blog

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:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. 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:

1. The use of the works is in part, and not in whole (e.g., reduced resolution or size)
2. The use of the works for the purpose of “criticism and commentary”
3. The use and creation of the works results in a “value that benefits the public interest”
4. The use of the works is “transformative” such as in a parody or for “criticism and commentary”
5. 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?

Back in the Fall of 2005 when I was first experimenting with Wikis in my middle school classroom, Eric Oatman, a news and features editor at the School Library Journal interviewed a number of teachers across the country (including me) about how we were using Wikis with our students.

The product of these interviews was an article on their website sharing a number of cool ways to integrate wikis into classes of all sorts. Though this article was written in 2005, it still provides a good overview of the possibilities of using wikis in your classroom. Since 2005, there have been many innovations in Wiki technology, most notably that many sites such as PBWiki.com and Wikispaces.com easily allow you and your students to create and manage wiki entries without having to know the special “markup” language many wiki interfaces required back in 2005. As with any technology, innovation continues and many become easier to use. Such has been the case with wikis over the past three years.

Back when I originally created the Emergent Encyclopedia of Composing for my middle school students, I browsed around and tested a number of free wiki sites and finally settled on PBWiki.com. I still use PBWiki today for my college classes because of its ease of use and multimedia features.

Since installing their new “point and click” interface back in January, users can now easily upload and post photos and streaming videos from YouTube, streaming audio from YackPack.com, add a chat room, install Google Gadgets, among other things.

As I have continued to experiment with wikis in music-related classes, the ability for students to create entries embedded with video and audio has become important. Though most wikis are optimized for textual and, to an extent, photographic-based collaboration, my students are moving toward conveying their ideas in audio and video form. Earlier this week Mojiti.com, previously featured on my blog here, released a new set of features that my students are already beginning to take advantage of.

The latest updates to Mojiti include:

• Multimedia annotations. Users can overlay/embed their own audio or video into a video.
• Freehand drawing support. Users can add their own Madden-style writing overlays.
• Mojiti-to-go Bookmarklet. This feature enables you to add a plug-in to your web browser which allows you to add Mojiti features to any streaming video hosted on the web.

Watch below or click here to see the new features in action.

I just received a fascinating email from Cambridge Journals, the publisher of one of the leading music education research journals, the British Journal of Music Education (BJME). BJME just published a research study conducted and written by a 12-year old student, Eleanor Denny. Working with researchers and other children at Open University, Eleanor designed, conducted, and wrote up a fascinating study about why students participate in musical experiences.

Here is her abstract:

I undertook this project as a 12-year-old student while studying research methods at the
Children’s Research Centre at the Open University. It has already been shown that doing
music improves children’s Mathematics and English scores. The aim of this study was to
find out if it also raises the aspirations of the children taking part. A questionnaire was
given out to 80 Year 7 children at two schools in Milton Keynes. Questions investigated
the children’s musical participation and future aspirations as well as their parents’ attitudes
and education.

The most important findings are that the musical participation of the children is
positively correlated with their future aspirations. Musical participation is most closely
linked with parental enthusiasm for it. Parental pressure and education were found to
have no link with musical participation, but families with low incomes may find affording
musical activities hard to maintain.

It is recommended that more money be put into music education so children of low
socio-economic backgrounds can have more of a chance to play musical instruments.

You can download and read the full research article here. Dr. John Finney from the University of Cambridge wrote a wonderful response to her article here.

Implications for music education

Why don’t we involve our students more in our research? Is the traditional “top-down” approach the best way to affect change in music education? I love John Finney’s idea that we should involve our students as “co-enquirers” in our research. All too often, we place ourselves as teachers and researchers in the role of “most knowledgeable” when, perhaps, our students should be seen in that role.

It is a great day in music education when one of the world’s leading music education research journals publishes a research study conducted and written by a 12-year old. Congratulations Eleanor!

Many people have asked me to define “Web 2.0.” In attempting to answer this question, I often ramble way too long about how about collaboration, rich media, blogs, wikis, and social networking sites. However, the other day on YouTube, I found the following video created by Professor Michael Wesch from the Digital Ethnography Project over at Kansas State University. This video entitled: “The Machine is Us/ing Us” sums it up!

In my middle school classes, my students often began composing after analyzing an existing piece of music to serve as a model or example to get their own compositional ideas. Because my students were working with loop-based software, I tried to find intriguing pieces of music that were based around loops or extended ostinati. When I was listening to the CDs that accompany the new Silver Burdett Making Music series, I ran across a track in Grade 2 entitled Fish Food by electric cellist Gideon Freudmann.

I tracked Gideon down on the web through his website and asked him about his process for creating Fish Food:

I recorded Fish Food with my electric cello and a Lexicon JamMan - a nice rack-mounted looper that has not been on the market for several years. Lately I have been using a foot peddle looper - the Boss Loop Station (RC-20). It’s not stereo, but very easy to use and has some other nice features.

Fish Food is from my CD, Hologram Crackers which is an entire album of loop based electric cello instrumental tunes (all original. It’s available, along with my other CDs at http://www.cellobop.com. Fish Food is an unusual tune in that the “verse” has three measures in 7 and one in 6.

The tune was recorded mostly in one pass with the looper - playing the the strum phrase first and then building the layers of the loop on top of it. Once it was all there I improvised some leads over the top - again, all in the one pass. When I mixed it down, I started the piece at a point where the loop with all the layers were established (as opposed to some other tunes where left in each layer as they get added) and at the very end I overdubbed a few of the weird atonal sounds. The big chord that begins and ends the tune came from another tune and those were the last sounds to be added.” (personal communication)

Not only were my students informed by analyzing the recording of Fish Food, but they also were informed by Gideon’s personal process of working with a stand-alone loop-pedal and production process in his studio.

I wish as teachers we had access to more stories of the actual production and composing processes musicians use to create music today. I did find a few older sources, such as writings by Igor Stravinsky (Poetics of Music) and Aaron Copland (What to listen for in music.) but what about more contemporary music and musicians?

In the bargain bin at a Tuesday Morning, I found a great book entitled: Off the record: Songwriters on songwriting by Graham Nash. This book and set of audio CDs includes interviews with Randy Bachman, David Crosby, John Lee Hooker, and others.

Another interesting book is Talking Music: Conversations With John Cage, Philip Glass, Laurie Anderson, and Five Generations of American Experimental Composers by William Duckworth. This book shares interviews and conversations with the above mentioned composers and others. I have found great quotes and descriptions of process in this book to share with my students.

For the most up-to-date examples of process, I have found Jon Savage’s Sound2Picture resources to be most intriguing. In this resource and in his own personal blog, Jon shares detailed notes and videos of sound designer Andrew Diey. In these notes, Andrew talks about his composing process for each of the films and computer games he composed for in the Sound2Picture and Sound2Game projects.

Lastly, Sam Reese pointed me in the direction of a great article by University of Illinois composer Stephen Taylor entitled: Translating unapproachable light: How composers write music. This article describes his own process composing a piece entitled: Unapproachable Light. Lots of great insight here that should be shared with student composers.

If you are interested in listening to Fish Food or using it with your students, check out the following information:
Fish Food (click to listen to and/or purchase from iTunes)
Gideon Freudmann - http://www.cellobop.com
2005 album Hologram Crackers