Copyright counseling
Monday, April 14, 2008 at 06:16AM 
A day or so ago, I responded to an LM_Net posting on copyright, suggesting that we as library media specialists re-brand ourselves as "copyright counselors" rather than "copyright cops." And wouldn't you know it, I get a chance to model what this might look like. From yesterday's inbox:
... For the past few years I have been creating a video for the students. It is kind of a video yearbook with clips from the various sports as well as plays, band and choir performances, homecoming parade, etc. I set these clips to music. This is quite a project for me as I actually go to all of the activities and film them. I then edit and produce the movie myself. It is kind of my gift to the students. This video is shown 2 times, once at an all-school assembly and then at graduation. Acquiring permission to use music in this production has added a degree of difficulty for me. Most of the time the publishers are pretty easy to deal with, but often the record companies, especially the large ones, can be difficult. For example, EMI wanted to charge me $1000 to use one of their recordings. Other smaller labels have been very accommodating.
My husband thinks I am nuts for working so hard to get this permission. He even said a lawyer friend of his told him that I shouldn't be so concerned. Sometimes when I contact an artist or publisher, they will tell me not to worry about contacting the recording company as they are often too busy to even consider my little request. I know this to be the case as sometimes I simply never hear back either way. Some of the items in the myths about fair use that you posted lead me to believe that it might not be that big a deal. If I were to get a cease and desist letter, would it really matter since the two performances would be over? I have to say that when I started doing this, it was just the assembly so I didn't even bother to get permission. But then my principal added it to graduation, so that is a public performance. The principal also added one additional nuance to the whole thing: we give copies of the DVD to the seniors as gifts. This year I am putting a warning on the jewel case liner that says duplicating or posting of this video is unlawful. I don't want it to show up on YouTube. But it is over 15 minutes long which might be kind of long for YouTube anyway.
... here are my questions:
- Do I really need to be so anal about seeking permission for all the music I use?
- Is it permissible to ask for permission with the stipulation that if I don't hear back, I will assume that it is OK.
- What kind of trouble am I likely to encounter if I were caught without permission?
- What do you think about the ethics of the situation? I have told my husband that as the media specialist I have felt compelled to seek permission, but when some of the companies I have talked to tell me simply not to worry about it, I wonder how vital it is for my little production. (I should also say that we are a small school of about 500 students. Graduating classes are usually around 100.)
This was my response, trying to espouse my theories that we need to help empower our staff and students - that we should be their advocates, not publishers... but still be legal and ethical.
First - I am not a lawyer. I am not a lawyer. I am not a lawyer.
As “Ten Common Misunderstandings about Fair Use" from the Temple University Media Education Lab says, "Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules.” My personal "level of comfort" would permit me to use music in the way you have described without writing for permission. Here's why:
- The use of the work is "transformative." You are using it for a purpose other than for which it was originally intended. You can describe your project as either "Personal reportage or diaries" or as a documentary.
- Your use is non-commercial. I assume you are not charging students for the DVDs or admission to graduation ceremonies.
- You are not effecting the potential market for the work. In fact, people might hear a song they like and buy a legitimate copy, in which the market impact would be positive.
One thing that I would consider doing would be to not use entire songs, but create a "medley" and only use music from the current year. This would strengthen the "documentary" aspect of the work as well as adding to the transformative nature of your use.
In Carol Simpson's database of reported cases of copyright lawsuits and cease and desist letters, I could not find an incident that is similar.
I myself would do what you are doing without any ethical concerns, but this needs to be a personal decision based on your own interpretation of fair use.
All the best,
Doug
Now having done this, I have to say that I don't really want to be the "copyright counselor" for the world. While it is lovely having one's opinion asked, I hope to move on to other subjects in this blog. Thanks!
Oh, another example of "hyper-compliance" to copyright restrictions and an interesting take on its ramifications on a school's public image on Scott McLeod's blog Dangerously Irrelevant. What makes this post doubly interesting is that Scott is an educational administration professor. I am wondering how his colleagues teaching school law would respond to his observations?
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Don't forget that tonight we will be discussing copyright on ALA's Main Stage in Second Life, starting at 6PM SLT. SLURL for the event is <http://slurl.com/secondlife/ALA%20Island/127/106/29> For more information visit the AASL blog. Hope to see your avatars there!
Image of Freud from <www.brynmawr.edu>
Reader Comments (13)
Since today is the [unofficial] Blogger Appreciation Day, I wanted to say a quick "THANKS" for writing. I am reading and thinking about what you wrote.
See you in 2nd Life.
I have a few "I am also not a lawyer" thoughts.
First off, if record companies (or whomever) really wanted to collect money for this sort of small scale performance, they would make it easy for you to give them money, at a price you could reasonably pay.
I'm not even sure the record company is the correct contact here -- isn't it the publisher?
I definitely wouldn't worry about the live performances. For the DVD I would stick with excerpts and a medley rather than whole songs, and it is plausibly covered under fair use.
If this went up on the web and a copyright holder objected, it would be covered by the takedown provisions of the DMCA, meaning, they'd contact YouTube, and YouTube would take it down. It seems extremely unlikely that the copyright holder would take the time to find the original source of the video and seek some kind of damages. It would be expensive for them, and generally not their lawyer's time.
You see, the way the DMCA is designed makes it cheap for them to simply get stuff taken down. That's what they want in this kind of case.
Yeah, meeting in Second Life, talking about the future is a whole lot more fun than being the world's copyright counselor, which is worrying about things in the past :-)
Hi Diane,
This is very nice. Thank you! Your writing has always been an inspiration to me as well.
I get more anxious about my Second Life talks than I do my F2F ones.
Thanks for attending this evening,
Doug
Hi Tom,
Thanks for these comments. I urged the originator of the "problem" to be sure to follow the responses to the entry.
I was reflecting on what a difference you, Peter Rock and Stephen Downes have made in my thinking about copyright and IP. I doubt that we will ever been in complete agreement, but you've all stretched my thinking on the issue.
Thank you.
All the best,
Doug
Hi Rob,
Actually I think it is sort of fun playing "copyright counselor" too. It is just such a time sink!
Hope to see you in SL and thanks again for your comments on California Dreamin'.
Send a little California weather this way. I am tired of ice covering the lake.
Doug
@Doug
What is the actual penalty if you get caught? If I'm not using the material to make a profit what are the dire consequences I am avoiding? Just curious.
Well, I AM(was) a lawyer and I don't know the answer to my own issue, obviously. I hate copyright law. Ugh.
As I said in a comment on my post, it seems to me like the sponsoring organization can't record the song(s)? But what about the public at a public event? For example, are organizations making these kinds of announcements at (a) church youth choir performances, (b) football game marching band performances, (c) the annual orchestra performance in the park, and/or (d) musical performances at the Rose Bowl parade (just to mention a few)? I'm not sure they are, nor am I sure that they could do so.
Clearly I don't know enough about this. Right now I only know enough to be dangerously opinionated. It just reeks of wrongness to me (the guy in front of me too; he said, 'copyright my ass!'). I'll try to follow up and see what I can find out.
Hi Charlie,
Most copyright infringement penalties begin with a "cease and desist" letter, as I understand it. You are asked to stop doing what ever the copyright holder sees as unlawful.
The RIAA has gone after people who have set up file sharing sites of copyrighted songs and gotten pretty hefty monetary settlements from them. I can see why music companies see this as more detrimental to their business than someone simply using the music for their personal enjoyment - it's competition.
Other readers may know of other penalties.
All the best,
Doug
Hi Scott,
I don’t see how the school could be held responsible for others videotaping the event. Making such an announcement might prove establish “due diligence” were the school to be sued by a music copyright holder. I would think that a statement in the bulletin that “videotaping this event may be interpreted as a violation of copyright laws” gets at the same thing and leaves the responsibility for taping on the individual actually doing. To me, making a recording for personal use of a kids concert with no intention of reselling the materials is fair use. And as you suggest, this needs to be balanced with the image the school has as well.
We are very much in need of a more “user-centric” guidelines to the use of copyrighted materials. As it stand we are making scofflaws of the majority of our citizens.
Thanks for the comment and all the best,
Doug
Just use www.freeplaymusic.com or www.jamendo.com. There are thousands of musicians who would love to give you their music for free. Avoid the recording companies and their silly copyright rules. Get your music directly from musicians who want to give it to you instead.
Hi Curtis,
I think this is an excellent suggestion in most circumstances.
Part of creating a yearbook or journal or memory book, however, is to also record the popular culture of that year. In this case, I believe a case can be made for using popular music in such creations.
Thanks again for the suggestion,
Doug
Hi,
By accident I came here a couple of days ago and I really like the articles posted here Because of that I decided to get an account here.
So thank you
ass parade